STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANIBEL-CAPTIVA CONSERVATION ) FOUNDATION, ALEXANDRA R. )

KALMAN, and DEWITT JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1463

) DEPARTMENT OF NATURAL RESOURCES ) and ROCHESTER REALTY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on October 30, 1978, in the Fourth Floor Conference Room, City Hall, 2200 2nd Street, Ft. Myers, Florida.

Petitioners were represented by David and Casey Gluckman, 5305 Isabelle Drive, Tallahassee, Florida; Respondent Department of Natural Resources was represented by Jack W. Pierce, Esquire Department of Natural Resources, Crown Building, 202 Blount Street, Tallahassee, Florida; and Rochester Realty, Inc., was represented by its vice-president, Tony Lapi.

This case involves the application of Respondent, Rochester Realty, Inc. (hereafter Rochester Realty), for a lease of submerged sovereignty land from Respondent, Department of Natural Resources (hereafter DNR), for the purpose of building an addition to its presently existing commercial docking facilities, located at a motel known as "Tween-Waters Inn." The proposed lease area lies within the boundaries of the Pine Island Sound Aquatic Preserve established pursuant to Section 258.39(22), Florida Statutes.

Petitioners Sanibel-Captiva Conservation Foundation, Alexandra R. Kalman and Dewitt Jones, filed their petition requesting that the lease applied for be denied or held in abeyance until rules are adopted which include a management or use plan for the Pine Island Sound Aquatic Preserve. The Foundation contends that the adoption of such a use or management criteria is a condition precedent to the erection of commercial docking facilities within the Preserve. The Foundation further contends that no lease of sovereignty submerged lands may be approved unless it is in the public interest and that in the instant case, there is no showing that the public interest will be served by the issuance of the requested lease.

DNR and Rochester Realty contend that, notwithstanding the language of the Aquatic Preserve Act (providing that commercial docking facilities shall not be erected in the Preserve, except those "shown to be consistent with the use or management criteria for the Preserve.") the application should be granted because DNR's authority to lease sovereignty lands in an aquatic preserve is not

dependent upon the adoption of such rules, but rather that the development of incipient policy through the promulgation of agency orders suffices to satisfy the requirements of the statute. Respondents contend further that the proposed construction meets the public interest.

The position of DNR and Rochester Realty is rejected as being not in accord with the legislative mandate.

FINDINGS OF FACT

1. The proposed addition to the existing commercial docking facilities in the Pine Island Sound Aquatic Preserve would consist of approximately 5,000 square feet of additional overwater structure. The effects of such a facility on the marine ecosystem were described in expert testimony. The structure would cut off penetration of light to the bottom and the organisms living below. The resultant change in the biota under the dock would reduce the number of sedentary species, that is to say those species that remain essentially stationary in a given area, and would increase the number of errant species, that is to say those species which move from place to place. This change in the existing ecosystem directly affects the food chain and ultimately adversely affects commercial and sports fishing.

   
   

2. Other negative impacts on the area due to the proposed construction would be increased boat traffic, sewage, introduction of petroleum products into the waters and an increase in the number and size of boats docking in the area thereby expanding the shaded area beyond that of the dock itself. Though the actual amount of damage to the preserve from both the shading effect and usage as a whole cannot be quantified without appropriate natural asset inventroy and study, some amount of damage would occur to the biological integrity of the area. The proliferation of docks within the Aquatic Preserve along with the cumulative impact of such construction must be considered as a potential threat to the Preserve. The cumulative impact and extent of damage which might occur as a result of the proposed construction must be determined through the conduct of a study developing a management plan for the Preserve, balancing present and future needs and values.

   
   

3. Each individual Petitioner owns waterfront property within the Pine Island Sound Aquatic Preserve. Because of the potential negative impact of the proposed project and its cumulative impact with other projects on waterfront property, each Petitioner would be materially affected by the granting of this lease.

   
   

4. No use or management criteria, ultimate or incipient, for the Pine Island Sound Aquatic Preserve have been adopted. However, since December, 1975, DNR has been engaged in the process of adopting such rules for the Biscayne Bay Aquatic Preserve. Once adopted, these rules will serve as a model for rules to be promulgated for the other aquatic preserves including Pine Island Sound Aquatic Preserve.

   
   

5. No studies have been conducted by DNR of Pine Island Sound Aquatic Preserve. There is no inventory of available commercial docks, boat traffic, ingress or egress within the Preserve. The proposed rules for the Biscayne Bay Aquatic Preserve are not presently being applied to aquatic preserve leases.

   
   

   CONCLUSIONS OF LAW

6. This case is controlled by Article X, Section 11, Florida Constitution, which provides in pertinent part that

   
   

   Private use of portions of [sovereignty] land may be authorized by law, but only when not contrary to the public interest.

   
   

7. In this section, the Florida Constitution sets up two conditions precedent to the private use of portions of sovereignty lands. They are first, that such use must be authorized by law and second, that such use must not be contrary to the public interest. Turning first to the applicable statutory authority for construction of commercial docking facilities within aquatic preserves (which is a private use of portions of sovereignty land) we find that Section 258.42 (3)(e), Florida Statutes, provides that

   
   

   There shall be no erection of structures within the preserves except ... 2.

   Commercial docking facilities shown to be consistent with the use or manage- ment criteria for the preserve; ...

   
   

8. The foregoing statute is the enabling legislation which authorizes the private use of portions of sovereignty land for the purpose of erecting commercial docking facilities. The law requires that the facilities be consistent with use or management criteria. It follows that if there are no use or management criteria in existence, that such private use of sovereignty lands is constitutionally impermissible.

   
   

9. Section 285.42(1), Florida Statutes, provides that sovereignty submerged land shall not be leased except when the lease is "in the public interest." The lease applied for in the instant case cannot be shown to be in the public interest since the public interest in aquatic preserves is to be defined in part by the use and management criteria developed for the preserve. The proposed construction would have some negative effect on the marine ecosystems in the area, although the individual and cumulative effects are at present unmeasurable because of the absence of use or management criteria and the absence of an inventory of other factors contributing to cumulative effect. Consequently, neither the constitutional nor statutory requirements of meeting the public interest can be measured in this case. It is, accordingly,

RECOMMENDED that Rochester Realty's application for a lease of sovereignty submerged land from DNR be denied without prejudice to resubmit such application upon the adoption of use or management criteria for the Preserve.

DONE and ENTERED this 1st day of March, 1979, in Tallahassee, Florida.

MICHAEL R.N. McDONNELL

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

David Gluckman, Esquire GLUCKMAN & GLUCKMAN

5303 Isabelle Drive

Tallahassee, Florida 32301

Jack W. Pierce, Esquire Department of Natural Resources Crown Building

202 Blount Street Tallahassee, Florida 32304

Docket for Case No: 78-001463

Orders for Case No: 78-001463