STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BAYSHORE HOMEOWNERS ASSOCIATION, )
et al., )
)
Petitioner, )
)
vs. ) CASE NO. 79-2186
) 79-2324
STATE OF FLORIDA, ) 79-2354
DEPARTMENT OF ENVIRONMENTAL ) REGULATION, and GROVE ISLE, ) INCORPORATED, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson held a Public Hearing in this case on January 2 & 3, 1980, in Miami, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: David A. Doheny, Esquire
1111 South Bayshore Drive Miami, Florida 33131
Bayshore Homeowners Association, Inc. Coconut Grove Civic Club
David A. & Carmen T. Doheny Tigertail Association
Tropical Audubon Society, Inc.
William Cleare Filer
3095 Northwest 7th Street Miami, Florida 33125
Pro Se as a Petitioner
Joel Jaffer
2479 Southwest 13th Street Miami, Florida 33145
Bayshore Alert: Yes
For Respondent: Randall E. Denker, Esquire (Department) Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent: Larry S. Stewart, Esquire (Grove Isle) Frates, Floyd, Pearson,
Stewart, Richmond & Greer One Biscayne Tower, 25th Floor Miami, Florida 33131
These proceedings began after the Department of Environmental Regulation (DER) on October 23, 1979, issued a letter of intent to grant Grove Isle, Inc., a water quality control permit for the construction of a 90 boat wet-slip marina on Grove Isle. Petitions requesting a s. 120.57(1) Hearing were filed by Bayshore Homeowners Association, Inc.; Coconut Grove Civic Club; David A. & Carmen T. Doheny; Tigertail Association; Tropical Audubon Society, Inc.; Wm.
Cleare Filer and Bayshore Alert: Yes. On October 30, 1979, November 16, 1979 and November 26, 1979, the various Petitions were forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final Hearing. After one continuance a final Hearing was held on January 2 & 3, 1980.
As the result of various Motions, the three cases filed herein, Wm. Cleare Filer v. Department of Environmental Regulation, Case No. 79-2186; Bayshore Homeowners Association, et al, v. Department of Environmental Regulation, Case No. 79-2324; and Bayshore Alert: Yes v. Department of Environmental Regulation, Case No. 79-2354 were consolidated for Hearing and all further proceedings. At the request of the permit applicant and without objection from other parties, the applicant Grove Isle, Inc., was made a party to these proceedings as a Respondent.
The issue in this case is whether Grove Isle, Inc., has provided the Department of Environmental Regulation reasonable assurances that the construction and operation of the proposed marina will not cause a violation of state water quality standards, will not interfere with the conservation of fish and other marine wildlife, and will not create a hazard to safe navigation of Florida waters.
Petitioners contend that such reasonably assurances have not been given by the applicant. They specifically contend that the proposed marina will result in the discharge of chemical pollutants into the waters of Biscayne Bay; that the use of the marina will result in damage to nearby seagrass beds; and that the Department of Environmental Regulation failed to follow proper procedures in evaluating the license application. Respondents naturally denied these contentions.
Testimony on behalf of the Respondents was presented by Mr. Larry O'Donnell, Dr. J. Blitstein, Dr. Kenneth E. Echternacht, and Dr. Durbin Tabb. Department of Environmental Regulation exhibits 1 through 4 were received into evidence. Grove Isle's exhibits 1 through 10 were received into evidence. Also received into evidence were Grove Isle's composite exhibit 11 as a rebuttal to the testimony of public witness Jim Apthorp. Testifying for the Petitioners were Aubrey L. Talburt, Esquire; Wm. Cleare Filer; Dr. Anitra Thorhaug; Mr.
Michael Chemowith; Dr. Eugene Corcoran; Dr. Renate Skinner; Mr. Stanley Dunn; David Doheny, Esquire and as a public witness Mr. Jim Apthorp. Petitioner, Bayshore Homeowners Association's exhibits 1 through 7 were received into evidence.
FINDINGS OF FACT
On March 13, 1978 an application was made to DER for a water quality control permit to construct a wet-slip marina on the west side of Grove Isle, formerly known as Fair Isle and Sailboat Key. The original plan for the marina, which was initially objected to by the Department of Environmental Regulation, was modified to protect a bed of seagrasses extending about 30 feet wide in a band along the west side of the island. While the plans were being modified and consultations with other government permitting agencies were in progress, the application was "deactivated" from September 27, 1978 until March 30, 1979. As a result of its investigation and review, DER on October 23, 1979, issued a letter of intent to grant the permit to Grove Isle, Inc. The permit if granted, would allow the applicant to construct six concrete fixed piers, five "T" shaped, one "L" shaped, with a boat docking capacity of 90 pleasure boats. The piers will extend a maximum of 165 feet offshore from an existing concrete bulkhead. The width of the piers will be 8 feet from the bulkhead to a point 41 feet offshore, and then increased to a width of 10 feet. A sewage pump-out facility is also proposed. Attached to that letter of intent were the following conditions:
Adequate control shall be taken during the construction so that turbidity levels outside a 50 foot radius of the work area do not exceed 50 J.C.U's, as per Section 24-11, of the Metropolitan Dade County Code.
During construction, turbidity samples shall be collected at a mid-depth twice daily at a point 50 feet up stream and at a point 50 feet down stream from the work area. The contractor shall arrange to have turbidity sample results reported to him within one hour of collection. Turbidity monitoring reports shall be submitted weekly to DER and to the Metropolitan Dade County Environmental Resources Management (MDCERM)
If turbidity exceeds 50 J.C.U's beyond a 50 foot radius of the work area, turbidity curtains shall be placed around the work area and MDCERM notified immediately. Turbidity samples shall be collected according to condition two above, no later than one hour after the installation of the turbidity curtain. It turbidity levels do not drop below 50 J.C.U's within one hour of installation of the curtain all construction shall be halted. Construction shall not be resumed until the contractor has received authorization from MDCERM.
No live-a-board vessels (permanent or transient) shall be docked at this facility unless direct sewage pump-out connections are provided at each live-a-board slip. A permanent pump-out station shall be installed and maintained for further removal of sewage and waste from the vessels using this facility. Compliance with this requirement will entail the applicant's contacting the Plan Review Section of MDCERM for details concerning connection to an approved disposal system.
Boat traffic in the shallow 30 foot wide dense seagrass area which parallels the shoreline shall be restricted by the placement of wood piles on 6 foot centers along the entire shoreline facing the marina.
The channel from this marina to deeper water in Biscayne Bay shall be marked to prevent boats from straying into adjacent shallow areas. This will prevent habitat destruction.
A chemical monitoring program shall be established to determine the effect of this marina on the water quality of this section of Biscayne Bay. Surface and mid-depth samples shall be collected at three points in the project area and at one background station. Parameters shall include, but not be limited to dissolved oxygen, pH, salinity, temperature, total coliform and fecal coliform and fecal streptococci bacteria, oil and grease, biochemical oxygen demand, and turbidity. Background samples shall be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. In addition to the chemical monitoring program, a benthic community monitoring program is to be established. Samples of the benthic seagrass community within and adjacent to the project area are to be collected prior to construction and quarterly for a minimum of one year after 90 percent occupancy of the marina. Should either monitoring program detect dissimilar changes at its monitoring and control stations, DER and MDCERM shall be notified of the results. The monitoring programs shall be reviewed and approved by DER and MDCERM prior to implementation.
Monitoring reports shall be submitted to DER and MDCERM and the United States Corps of Engineers on regular basis.
Warning signs shall be posted in the marina area to advise marina users that manatees frequent the area and caution should be taken to avoid collisions with them.
With the foregoing conditions imposed, the Department concluded that no significant immediate or long term negative biological impact is anticipated and state water quality standards should not be violated as a result of the proposed construction.
Grove Isle, Inc., has agreed to comply with all the conditions established by the DER letter of intent to grant the permit.
Grove Isle is a spoil bank in Biscayne Bay located approximately 700 feet east of the Florida mainland. It is linked to the mainland by a two-lane concrete bridge. The island is currently under development for a 510 unit condominium community with associated facilities such as a restaurant, hotel, and the proposed marina.
The island is surrounded by a concrete bulkhead constructed many years ago. No changes in the bulkhead line are proposed.
Grove Isle, Inc., proposes constructing the marina on concrete piles driven into the Bay bottom from a shallow draft barge. During construction there would be some turbidity caused from the disruption of the Bay sediment. This can however be adequately controlled by the use of turbidity curtains during construction. The construction will not require any dredging or filling.
In the immediate marina site the most significant biota are a 30 foot wide bed of seagrasses. There are no other important biota because at one time the area was extensively dredged to create the island. There are no oyster or clam beds nearby. While lobsters may have once frequented the area, they too are no longer present. The water depth in the area ranges from 1 foot near the island bulkhead to 12 feet offshore to the west of the island.
This particular seagrass bed consist primarily of turtle grass (thalassia, testudinum) with some Cuban Shoal Weed (Halodule, Wrightii). Protection for these grasses will be provided by a buffer zone between the
island and the boat slips. The grassy zone will be bordered by a row of dolphin piles to exclude boat traffic. Because the grass requires sunlight for photosynthesis and therefore life, the six piers will have grated walkways where they pass over the grass. This will allow sunlight to reach below.
In addition to the small grass bed on the west of the island there are extensive beds to the northeast, east and south of the island that extend several hundred yards from the island in water depths of three to ten feet. If boat traffic in the vicinity is markedly increased due to the existence of the marina, it is conceivable that the number of propeller scars in these shallow beds could increase. At the present time the beds are already traversed by boats, some of which are owned by Petitioner's members. There are already for example, approximately 50 crafts which operate from the nearby mainland or from Pelican Canal directly to the north of the island. Propeller scars take up to fifteen years to heal yet the number of scars in the Grove Isle area is insignificant and even a tripling of them from an additional 90 boats would still be de minimus.
Potential damage to the seagrasses on the north side of the island will be minimized by the planned installation of navigation markers by Grove Isle. These markers will channel boats into water of a navigable depth and lessen the number of groundings and near groundings which cause the scarring.
There is evidence that pleasure boats by their very existence and operation in the water are potential pollution sources. For instance, various maintenance chemicals such as anti-fouling bottom paint and wood cleaner have the ability, if used in sufficient quantity, to harm marine life. The fueling of engines and sewage discharge from boats are additional pollution sources. There was however, no showing that the location of up to 90 pleasure and sport fishing craft at the proposed marina site would in any way cause a degradation of water quality below the acceptable standards for Class III waters.
At the present time, the marina site has adequate flushing to disburse those pollutants which may be generated by the marina operations. While a hydrographic survey was not requested by DER or provided by Grove Isle at the time the permit application was made, the testimony of Dr. Echternacht at the time of the Hearing provided adequate assurances respecting the hydrographic characteristics of the proposed site.
The proposed marina will have no fueling or maintenance facilities. No live-a-board craft will be allowed at the marina.
Both Mr. Wm. Cleare Filer and David A. Doheny live close to Grove Isle. Mr. Doheny's residence is on the mainland facing the proposed marina site and Mr. Filer's house is on Pelican Canal. They use the waters of Biscayne Bay around Grove Isle for recreation. If the quality of the water in the proposed marina site were lessened their substantial interest would be affected.
Biscayne Bay is classified as a Class III water and is in the Biscayne Bay Aquatic Preserve.
Careful considerations has been given to each of the proposed findings of fact submitted by the parties. To the extent that they are not contained in this Order, they are rejected as being either not supported by competent evidence or as immaterial and irrelevant to the issues determined here.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this action s. 120.57 Florida Statutes (1979).
Petitioners, David A. Doheny and Wm. Cleare Filer have standing as parties whose substantial interest could be affected by the proposed agency action at issue here. No evidence with respect to the other named Petitioners was presented at the Hearing and while one of the Respondents, DER, orally agreed that "the Petitioners have standing" no facts were provided on which the legal conclusion of having standing could be based. For this reason all Petitioners other than David A. Doheny and Wm. Cleare Filer are without standing.
Respondent, Grove Isle, Inc.'s, Motion to Strike the Testimony of David A. Doheny with respect to his own use and enjoyment of the waters of Biscayne Bay is denied. The fact that he is counsel for Carmen T. Doheny and the Association Petitioners does not prohibit him from testifying as to his own substantial interest in this proceeding. The case of Hardemon v. Fish, 325 So 2d, 411 (FLA 3d DCA 1976) relied on by Grove Isle is not to the contrary. Testimony by Mr. Doheny with respect to the merits or standing of his clients' case would of course have been objectionable.
Respondent, Grove Isle, Inc., has provided reasonable assurances that the proposed marina will not violate state water quality standards in accordance with the requirements of s. 403.021(2) and 403.088 Florida Statutes and Rules
17-3.01, 17-3.02, 17-3.05(2), 17-3.09, 17-4.07 and 17-4.29 Florida
Administrative Code. Respondent, Grove Isle, Inc., has provided adequate biological, ecological and hydrographic surveys of the proposed site which demonstrate that the proposed project and activities associated thereto, will not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest. The project further, will not result in the destruction of oyster beds, clam beds or marine productivity including, but not limited to destruction of natural marine habitats, grass flats suitable for nursery or feeding grounds for marine life and established marine soil suitable for producing plant growth of the type useful as nursery or feedings grounds for marine life or of natural shoreline processes to such an extent as to be contrary to the public interest. The project will not create a navigational hazard, be a serious impediment to navigation or substantially alter or impede the natural flow of navigable water so as to be contrary to the public interest.
In considering the balance of the minimum affect the proposed marina will have on the waters of Biscayne Bay versus the increased recreational opportunities it will provide as a marina for 90 pleasure craft it is concluded that the proposed project is affirmatively in the public interest. The site chosen is one which has already in the past been dredged and has little or no valuable marine life except the 30 foot strip of grass bed which will receive more than adequate protection. Furthermore, the provision of a well-marked channel on the north side of the island will certainly reduce some of the random traffic over the adjacent grass beds. Sanibel-Captiva Conservation Foundation, et al, v. DER and Marine Properties, Incorporated, Case No. 78-2422, (Florida Division of Administrative Hearings, Recommended Order, April 11, 1978); Shablowski v. DER, 370 So 2d 50,50 (FLA 1st D.C.A. 1979); Yonge v. Askew, 293 So 2d 395, 401 (FLA 1st D.C.A. 1974).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested water quality control permit and certification be issued subject to the conditions contained in the Notice of Intent to Issue Permit and that the Relief requested by the Petitioners be denied and their Petitions be dismissed.
DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida.
MICHAEL P. DODSON
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131
Wm. Cleare Filer
3095 Northwest 7th Street Miami, Florida 33125
Joel Jaffer
2479 Southwest 13th Street Miami, Florida 33145
Randall E. Denker, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Larry S. Stewart, Esquire Frates, Floyd, Pearson,
Stewart, Richmond & Greer One Biscayne Tower
25th Floor
Miami, Florida 33131
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
BAYSHORE HOMEOWNERS ASSOCIATION,
INC., et al.,
Petitioner,
vs. CASE NO. 79-2186
79-2324
STATE OF FLORIDA, 79-2354
DEPARTMENT OF ENVIRONMENTAL REGULATION, and GROVE ISLE, LIMITED,
Respondent.
/
FINAL ORDER
On February 22, 1980, the duly appointed hearing officer in the above- styled matter submitted to the Department a Recommended Order consisting of findings of fact, conclusions of law, and a recommended order. A copy of the Recommended Order is attached as Exhibit "A".
Pursuant to Section 120.57(1)(b)4., Florida Statutes, the parties were allowed ten (10) days in which to submit exceptions to the Recommended Order. Petitioners, Bayshore Alert: Yes, Bayshore Homeowners' Association, Inc. , Coconut Grove Civic Club, Carmen T. and David A. Doheny, Tigertail Association, Inc., and Tropical Audubon Society, Inc. filed exceptions to the Recommended Order and requested oral argument before the Secretary. Oral arguments were held before me, as head of the Department, on March 14, 1980. At the oral arguments, excerpts from the transcript were filed with me by Petitioners.
Having carefully considered the Recommended Order, the exceptions of Petitioners, and the oral argument by all parties, it is therefore, ORDERED that:
The hearing officer's findings of fact be adopted
The conclusions of law of the hearing officer are adopted except as to the conclusions of law of the applicable rules governing the application and the proceeding. Both the preliminary statement of the issue in the proceeding and the conclusion of law regarding the applicable rules and public interest criteria are expressly rejected for the following reasons:
Petitioners argued from the beginning of the proceeding and in exceptions filed with me that the applicable section governing the application is Rule 17- 4.242(1)(a), Florida Administrative Code. Respondents argued that the applicable rules governing the proceedings were in old Rules 17-3, 17-4.07, and 17-4.29, Florida Administrative Code. Respondents argue that under Sexton Cove
Estates v. State of Florida Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976) the Department must look to the standards in effect at the time an application is filed with the Department. Petitioners argue that Rule 17- 4.242(1)(a), Florida Administrative Code, requires that the new rules be considered when an application for a permit is complete after the effective date of the rule. The hearing officer found that the application for permit was filed on March 13, 1979. No finding of fact was made regarding the date the application became complete. Petitioners contend the application is still incomplete; Grove Isle argued before me that the file was complete on August 3, 1979. The revisions to Rule 17-3 and 17-4, Florida Administrative Code, were effective on March 1, 1979. If the application was complete on August 3, 1979, the criteria regarding Outstanding Florida Waters contained in Rule 17-4.242, Florida Administrative Code, would apply.
The hearing officer in finding of fact number 10 found "There was, however, no showing that the location of up to 90 pleasure and sport fishing craft at the proposed marina site would in any way cause a degradation of water quality below the acceptable standards for Class III waters." In conclusion of law number 4, the hearing officer found "Respondent, Grove Isle, Inc., has provided reasonable assurances that the proposed marina will not violate state water quality standards in accordance with the requirements of Section 403.021(2) and 403.088, Florida Statutes, and Rules 17-3.01, 17-3.02, 17-3.05(2), 17-3.09, 17-4.07 and 17-4.29, Florida Administrative Code." The hearing officer, therefore, did make findings of fact and conclusions of law regarding the rules in effect at the time the application was filed.
However, the criteria for Outstanding Florida waters are different than the Class III standards for water quality that the hearing officer applied. In the new rule the question is whether the stationary installation will significantly degrade the water quality or lower the existing ambient water quality. This is a significantly tougher standard than that required by the old rule. Sexton Cove Estates, supra, does not resolve the situation of an incomplete application being filed prior to a rule change. Because the rule in question, Rule 17- 4.242(1)(a), Florida Administrative Code, does have the specific language governing date of application, it is concluded that the rule is controlling.
Because the applicant has not shown its entitlement to the permit udder Rule 17-4.242(1)(a), Florida Administrative Code, the permit must be denied. However, the Department respectfully remands this case to the hearing officer for the purpose of conducting a hearing, taking evidence, and making findings of fact, conclusions of law and a recommendation regarding issuance or denial of the permit pursuant to the above-substituted conclusions of law. The hearing officer is requested to make a finding regarding the date the application was complete and if that date is after the effective date of the revisions to Rule 17-3 and 17-4, Florida Administrative Code, to take evidence and make findings of fact and conclusions of law regarding compliance with the criteria of Rule
17-4.242(1)(a), Florida Administrative Complaint. Those findings should include the "public interest" criteria of Rule 17-4.242(1)(a) Florida Administrative Code, which are different than the conclusions of law of the hearing officer.
The hearing officer is respectfully requested to expedite this hearing and the submission of his Recommended Order in order to minimize any additional delay which may result from this order.
RESPONSE TO EXCEPTIONS
The exceptions of Petitioner, Bayshore Alert: Yes, which deal with standing are rejected as not being in accord with the evidence as found by the
hearing officer. The exceptions as to all other matters are rejected, since only a party may submit exceptions under Section 120.57(1)(b)8., Florida Statutes.
The exceptions of Petitioners, Bayshore Homeowners Association, et al., have been substantially adopted by this order or rendered moot pending the second hearing. Exception No. 8 as to standing is rejected as not being in accord with the evidence as found by the hearing officer.
DONE AND ENTERED this 7th day of April, 1980, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JACOB D. VARN
Secretary
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Michael Pearce Dodson, Hearing Officer, Division of Administrative Hearings, Room 10, Collins Building, Tallahassee, Florida 32301; David A. Doheny, Esquire, 1111 South Bayshore Drive, Miami, Florida 33131; William Cleare Filer, 3095 North West 7th Street, Miami, Florida 33125; Joel Jaffer, 2479 South West 13th Street, Miami, Florida 33145; Randall E. Denker, Esquire, Assistant General Counsel, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301, and Larry S. Stewart, Esquire, Frates, Floyd, Pearson, Stewart, Richmond & Geer, One Biscayne Tower, 25th Floor, Miami, Florida 33131, this 7th day of April, 1980.
TERRY COLE
General Counsel
=================================================================
RECOMMENDED ORDER ON REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BAYSHORE HOMEOWNERS ASSOCIATION, )
INC., et al., )
)
Petitioner, )
)
vs. | ) CASE | NO. 79-2186 |
) | 79-2324 | |
STATE OF FLORIDA, | ) | 79-2354 |
DEPARTMENT OF ENVIRONMENTAL | ) | |
REGULATION, and GROVE ISLE, | ) | |
LIMITED, | ) | |
) | ||
Respondent. | ) |
)
RECOMMENDED ORDER ON REMAND
This case was first heard on January 2 and 3, 1980, and a Recommended Order was entered on February 22, 1980. The Department of Environmental Regulation in its final order entered on April 7, 1980, remanded the case to the undersigned Hearing Officer for further proceedings to:
Determine the date on which Respondent, Grove Isle's application was complete, and
If that date was subsequent to the effective date of Rule 17-2.242, Florida Administrative Code to take evidence and make findings with respect to the application of that rule in the instant case.
This order incorporates by reference all of the Recommended Order entered on February 22, 1980, except for that Conclusion of Law, which holds Rule 17- 4.242, Florida Administrative Code inapplicable to these proceedings.
Subsequent to the remand the Hearing Officer, after a review of the existing record, found that Grove Isle's application was complete on August 3, 1979. See Order Scheduling Hearing on Remand, entered April 22, 1980. Since that date is subsequent to March 1, 1979, the effective date of the Outstanding Waters Rule, a Remand Hearing was scheduled. That hearing was held on May 7 and 12, 1980.
At the May 12 hearing date, Stanley J. Niego, Esquire appeared in the place of Randall E. Denker, Esquire on behalf of the Department of Environmental Regulation. Because in the Recommended Order entered on February 22, 1980, numerous parties were found not to have standing, the only parties of record on Remand were David A. Doheny, Esquire and William Cleare Filer as Petitioners and DER and Grove Isle, Ltd. as Respondents. Subsequent to the May hearing, Mr.
Joel Jaffer on behalf of Bayshore Alert: YES filed a Motion To Intervene. That Motion is denied. The Committee was found not to have standing to participate already. Recommended Order, February 22, 1980, and Order Denying Petition To Appear, April 17, 1980.
While Grove Isle, Ltd. and DER have continued to nominally be aligned as Respondents, that alignment no longer reflects the true interest of the parties. Without notice to either the parties or to the Hearing officer until May 7, 1980, DER changed its posture from supporting the permit application to opposing it. At the beginning of the hearing on Remand DER announced in its opening statement that since Section 17-4.242, Florida Administrative Code had been determined to apply to the project (a position contrary to that asserted by DER in the initial hearing on January 2 and 3, 1980) it now intended to deny the permit. At no time prior to the hearing did DER withdraw or amend its letter of intent to grant the permit.
Bayshore Homeowners Association, Carmen T. Doheny, Coconut Grove Civic Club, Tigertail Association, Inc., and the Tropical Audubon Society, Inc. participated as Petitioners in the January, 1980 hearing. In the Recommended Order of February 22, 1980, they are found not to have standing. This conclusion was adopted in the Department's final order of April 7, 1980. At the May, 1980 hearings on Remand they moved to reopen the issue of their standing.
That Motion was denied.
At the Remand Hearing Grove Isle offered as its witnesses: Alfredo Rodriguez, Robert Carter, Dr. J. Frederic Blitstein, and Dr. Ken Echternecht. Grove Isle offered Exhibits 11, 12, and 13 which were received into evidence.
DER offered testimony from Harvey Rudolph and Larry O'Donnell. It offered DER's Exhibit 5 which was received into evidence. David A. Doheny presented testimony from James Redford, Leonard Pardue, Nancy Brown, Dr. Thomas Lee, Martin Margulies, Henry Alexander, Brian Mark, Esquire, Robert Whitehead, Marilyn Reed and James Apthorp. Mr. Doheny's Exhibits 8-11 were offered, but only 8 and 9 were received into evidence.
ISSUE
Has the applicant, Grove Isle, Ltd. provided reasonable assurances and affirmatively demonstrated that its proposed marina is clearly in the public interest and will not lower the existing ambient water quality of Biscayne Bay, a designated outstanding Florida water?
FINDINGS OF FACT
Miami has a shortage of boat slips in Biscayne Bay. In the Dinner Key area immediately to the south of Grove Isle there is a three to five year waiting period for applicants to use public wet-slips. Private facilities in the area have a two to three year waiting list for their wet-slips.
Because of the slip shortage there is considerable unauthorized mooring just outside the spoil banks surrounding Dinner Key. The City of Miami is unable to police the pollution from boats in the maverick moorings the way it would if they were in marinas.
If the Grove Isle Marina were constructed it is possible that its additional 90 slips would alleviate some of the demand on the nearby public and private marina facilities. No reliable estimates are available on how many Grove Isle residents currently own boats and already have them in local facilities and would move their craft to the Grove Isle Marina. The use of the marina will be limited to only Grove Isle residents. It is also possible that the ready availability of marina space at Grove Isle would encourage 90 non-boat owning residents to initially purchase boats, while without the marina at their back door they might have no desire to sail Biscayne Bay.
The development of Grove Isle Marina is supported by the Marine Council of Greater Miami, Inc. The Council is composed of members of the marine industry and of the boating public in the Miami area.
For convenience the scientific community which does research in Biscayne Bay has divided it into three areas -- North Bay, Middle Bay, and South Bay. South Bay is that area bounded on the west by the Florida mainland and on the east by Key Biscayne and the "Safety Valve". Rickenbacker Causeway is the north limit and the south boundary is Card Sound. Grove Isle lies in the far
northwest corner of the South Bay area. Its juxtaposition relative to the mainland is indicated by Appendix A which is made a part of these findings.
The whole of South bay is a vast body of water, three to Four miles wide and at least eighteen miles long.
The area to the northwest of Grove Isle, to the east and southeast of the mainland, and to the northeast of Grove Isle bridge is a geographically discrete part of Biscayne Bay.
During one measure of the flushing resulting from tidal variations around Grove Isle, it was found that on the ebb flow the water velocity was .36 knots to the north. On the flood tide the velocity was measured at .09 knots to the south. This is adequate flushing to lower the minimal water pollution which might result from the marina operation to keep water quality within ambient standards.
On April 15, 1980, a DER biologist took water samples at seven different stations in the Grove Isle area. Stations three and four were next to the mainland north of Grove Isle. Stations one and two were in the "cove" between the mainland and Grove Isle. Stations five, six, and seven were out in Biscayne Bay to the east, south, and west of Grove Isle respectively. The average dissolved oxygen in milligrams per liter at each station was:
Station One: | 6.2 |
Station Two: | 5.9 |
Station Three: | 5.4 |
Station Four: | 5.7 |
Station Five: | 6.2 |
Station Six: | 6.5 |
Station Seven: | 6.2 |
Stations three and four were among boats slips along the mainland. Samples taken there had significantly less dissolved oxygen. DER argues that this data shows, if the marina is constructed then the dissolved oxygen in the water surrounding the new slips will necessarily be diminished. That argument is flawed by the lack of controls in the sampling. For instance, there is no showing that the lessened dissolved oxygen content in the waters next to the mainland and among the boat slips did not result from an increased nutrient runoff from the water front homes. It is also possible that the water along the shore where there has been dredging has a lower oxygen content when compared to the offshore water because of the oxygen producing vegetation in the offshore grass beds. DER's argument does not account for these possibilities.
The condominium agreement between the condominium purchasers and Grove Isle, Ltd., the developer, does not obligate the developer to provide marina slips. The income resulting from the slip sales will go to Grove Isle, Ltd.
The proposed marina meets all local zoning requirements.
Proposed findings of fact were submitted by Grove Isle, Ltd., DER, and David A. Doheny, Esquire. Careful consideration has been given to those proposed findings. To the extent that they are not contained in this order they are rejected as being either not supported by competent substantial evidence or as irrelevant and immaterial to the issues for determination here.
CONCLUSIONS OF LAW
The sole issue on remand concerns the application of the outstanding Florida Waters Rule, Section 17-4.242, Florida Administrative Code, to the proposed marina. The Rule is applicable by virtue to Section 17-3.041(1)(f), Florida Administrative Code which classifies all waters in aquatic preserves including Biscayne Bay as outstanding Florida waters. Section 17-4.242 provides in pertinent part that the permit applicant must affirmatively demonstrate that:
(1)(a)2. The proposed activity
or discharge is clearly in the public interest; and either
a department permit for the application has been issued or an ap- plication such permit was complete prior to the effective date of the water; or
the existing ambient water quality within Outstanding Florida Waters will not be lowered as a result
of the proposed activity or discharge,. . .
Ambient Water Quality
There is a sharp dispute between the parties on what is the geographical scope for considering what is "ambient". Is it the whole of South Bay as Grove Isle argues, or is it right next to the marina pilings as DER argues? Neither position makes sense. South Bay is a large body of water. Serious environmental damage could be done in one area such as around Dinner Key, without measurably affecting all of South Bay. Such an interpretation would not comport with the purpose of the outstanding water rule to afford these waters the "highest protection". Section 17-3.041(1), Florida Administrative Code.
On the other hand it makes no sense to measure a change in ambient water quality within a few inches of a newly driven piling. Just the fact that the piling may have been pressure treated with creosote, will change the water quality within that distance. If DER's approach were used, not even one piling could be placed in Biscayne Bay. That is contrary to the intent of the Biscayne Bay Aquatic Preserve Act. It for instance provides that minimal dredging or filling, if it will not adversely affect the water quality, may be permitted for tie creation of marinas, piers, and docks, etc. Section 258.165(3)(b)1. Florida Statutes (1979). The Act embodies a balance between the preservation of Biscayne Bay in essentially its natural condition and its being enjoyed by the citizens of Florida in traditional marine activities such as boating, fishing, and swimming. Section 258.165(4)(a)2. Florida Statutes (1979).
The scope of what is "ambient" water quality, must therefore be interpreted with the balance between preservation and enjoyment as a guide. The case of Shablowski v. Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st D.C.A. 1979) illustrates how that interpretation should be made. Edward Shablowski wanted to dredge and fill the west bank of the Indian River between the Melbourne Causeway to the south and the Eau Gallie Causeway to the north.
In considering the ecological impact of the proposed fill, the Division of Administrative Hearings' Hearing Officer measured it against the entire Indian River located between the two causeways. When DER entered its Final Order it found this to be error.
The "area" which the Hearing Officer refers to is the basin in the Indian River between the Melbourne and Eau Gallie Causeways. There is no basis in fact or law for the Hearing Officer's assumption that the impact of the pro- posed fill must be measured against the ecology of a given area, such as that between the two causeways. The statute does not specify a geographical area against which such impact must be mea- sured One could just as well ask what the impact of the proposed fill would be on the entire Indian River and its
estuaries. It is clear that the greatest impact of the project would be on the area to be filled itself, where there will be total destruction and oblitera-
tion of the natural resources. The effect would, necessarily, be less drastic
on the immediate surrounding area and would be diluted with distance and space as one increases the pro- posed area of impact. The Hearing Officer, therefore, erred in mea- suring the impact against the entire basin between the two causeways.
The District Court of Appeal, First District, held that the Hearing Officer had acted properly in selecting the most logical geographical area against which to measure the impact of Shablowski's project.
In the instant case, the applicable geographical area for what is "ambient" is that part of Biscayne Bay to the west of Grove Isle, to the north of Grove Isle bridge, to the east of the Miami mainland, and to the immediate south of the Mercy Hospital landing facing Grove Isle. 1/ See Appendix A. within this geographical area, referred to by one witness as a "cove", the existing ambient water quality will not be lowered by the proposed project.
Public Interest
In addition to not lowering the water quality the proposed project must be "clearly in the public interest". This test is similar to that applied in Shablowski, supra and Yonge v. Askew, 293 So.2d 395 (Fla. 1st D.C.A. 1974) where an applicant to lease state submerged lands had to show that the public interest would be served by his project. Because Shablowski did not assert that his project would serve the public interest, the Court held that his dredge application was properly denied. 370 So.2d at 53.
In reviewing Yonge's application the Court held that a resolution adopted by the Board of County Commissioners was not determinative of whether or not his development was in the public interest. Yonge's development plan was to create a large number of water front lots on his uplands which would border the canals he planned to dredge. In examining the public interest question, the Court noted that while the project might be highly beneficial to Yonge and might even be to some benefit to Citrus County where the development was to be
located, that benefit did not meet the statutory test of being in the interest of all the people of the State of Florida. The Court affirmed the Trustees denial of Yonge's application because of the Trustees' position that no dredging permits should be granted in Crystal River for ecological reasons.
In this case the applicant has cleared all the hurdles protecting the environment. Its hard to imagine an ecologically cleaner marina. It will be built over already dredged bay bottom (dredged years ago); it will have no maintenance or fueling facilities; no live-a-boards boats will be allowed; and no dredging or filling will be required for the construction.
The interest the public has in the construction of the marina is slight however. There is the possibility that a new marina might relieve some of the overcrowding in public facilities but no adequate proof of that possibility was presented to make it a probability. The Grove Isle Marina will be solely for the use of condominium owners on the Island. The income from the conveyance of the slips to the residents will go to Grove Isle, Limited. There will be no public access to the marina.
DER argued strongly at the final hearing that because the marina is to be privately owned it is not in the public interest as a matter of law. That argument is too simplistic. Private hospitals and schools can certainly be in the public interest. The fact of private ownership does not prevent public benefit. Even here there can be some minimal public benefit. The proposed marina will provide increased recreational activities for at least 90 boat owners in Dade County. Grove Isle's plan to mark the channel on the north side of the island may help reduce random boat traffic over adjacent grass beds and reduce the consequential propeller scaring. All of these factors conform to the public policy expressed in the Biscayne Bay Aquatic Preserve Act at Section 258.165(4)(a)2. Florida Statutes (1979) and in the Florida Aquatic Preserve Act at Section 258.42(3)(a) 2. and (6)1. which recognize the Importance of recreational boating to the State of Florida.
on the other side of the public interest question, the construction of the marina will create a man-made intrusion into Biscayne Bay and will disrupt its natural state. What is now open water will be cluttered with the visual confusion of docks and 90 water craft. This change would be contrary to the basic intent of the preservation acts to maintain the preserves "essentially in their natural or existing conditions". Section 258.37(1), Florida Statutes and Section 258.165(1), Florida Statutes (1979).
After a consideration of all the foregoing factors, the intent of the preservation acts, and DER's rules, it is concluded In This case that the greater benefit to the greater number of Floridians lies in denying the application of Grove Isle. 2/ Yonge v. Askew, supra.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the State of Florida, Department of Environmental Regulation deny the application of Grove Isle, Limited for a water quality control permit.
DONE and RECOMMENDED this 12th day of November, 1980, in Tallahassee, Florida.
MICHAEL P. DODSON
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
ENDNOTES
1/ This area is even smaller than that surveyed by DER in taking 15 water quality samples on April 15, 1980, for purposes of this litigation.
2/ Such a denial may mean that it is impossible under the existing rules, where the applicant bears an affirmative burden of showing his project is clearly in the public interest, for a private marina to be built in Biscayne Bay. The present project is as environmentally clean as one can be, yet it cannot meet the heavy burden of the public interest test. See Estuary Properties v. Askew
381 So.2d (Fla. 1st D.C.A. 1979) regarding the ability of the State to limit the use of private property in order to preserve the environment; to the contrary is Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894-95 (Fla. 1st D.C.A. 1980)
COPIES FURNISHED:
David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131
Larry Stewart, Esquire One Biscayne Tower 25th Floor
Miami, Florida 33131
Randall E. Denker Assistant General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Mr. William Cleare Filer 3095 Northwest 7th Street Miami, Florida 33125
Mr. Joel Jaffer
2479 Southwest 13th Street Miami, Florida 33145
APPENDIX A *
* NOTE: Appendix A is a sketched map of the Miami Mainland and Biscayne Bay which is not a part of this ACCESS document, but is available for review in the Division's Clerk's Office.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
BAYSHORE HOMEOWNERS' ASSOCIATION,
INC., et al.,
Petitioners,
vs. CASE NO. 79-2186
79-2324
STATE OF FLORIDA, DEPARTMENT OF 79-2354
ENVIRONMENTAL REGULATION and GROVE ISLE, INC.,
Respondents.
/
FINAL ORDER
This is a final order on a remand hearing held by the Division of Administrative Hearings on May 7th and 12th, 1980. The initial final order in this case was entered on April 7, 1980.
The purpose of the remand was to hold further proceedings to determine:
The date on which Grove Isle, Incorporated's application for permit was complete, and
If that date was subsequent to the effective date of Section 17-4.242, Florida Administrative Code, to make further findings and conclusions based on the criteria in that rule.
The hearing officer submitted to me on November 12, 1980 a "Recommended Order on Remand" regarding the above issues. A copy of the "Recommended Order on Remand" is attached as Exhibit A. Exceptions were submitted by all parties. The matter, therefore, came before me for final action. Having carefully considered the Recommended Order on Remand, the exceptions and proposed Final Order, it is, therefore, ORDERED that:
The Findings of Fact of the Hearing Officer are adopted.
The Conclusions of Law of the Hearing Officer are adopted except as discussed below.
AMBIENT WATER QUALITY
The hearing officer determined August 3, 1979, to be the date of completion of the application for permit, therefore, Section 17-4.242, Florida Administrative Code is applicable to this proceeding.
Determination of compliance with water quality standards is made within the project area itself unless a mixing zone is applied for and granted by the Department. Section 17-4.242(1)(a)2.b., Florida Administrative Code, specifically states that ambient water quality standards may not be lowered unless such a lowering is temporary in nature (i.e., not more than 30 days) or unless the "lowered water quality would occur only within a restricted mixing zone approved by the Department. "
The record does not show that a "restricted mixing zone" was applied for by the applicant or granted by the Department. Therefore the hearing officer was not a liberty to apply a mixing zone in this case.
In addition, the hearing officer's reliance on Shablowski v. DER, 370 So.2d
50 (Fla. 1st DCA 1979) is misplaced since he found these proceedings were governed by the new amendments to Chapters 17-3 and 17-4, Florida Administrative Code, not the old rule involved in Shablowski.
Accordingly, Conclusions of Law 2 through 5 are modified as discussed above.
PUBLIC INTEREST
I am also rejecting the part of Conclusion of Law in which states: "...no dredging or filling will be required
for the construction."
The construction of a marina on pilings which are driven into the bay bottoms constitutes "dredging" within the meaning of Section 17-4.02(12), Florida Administrative Code and Section 253.123, Florida Statutes. The fact that pilings displace soils, grasses and other bay bottom materials is sufficient to place it within the statutory and administrative definitions.
The Department has consistently required dredge and fill permits for marinas and other "pilings" projects. See: Byrd v. Department of Environmental Regulation and Steve-Am Properties, Case No. 79-850 (July 9, 1979); Mansfield v. Department of Environmental Regulation, Case No. 79328 (June 22, 1979); Vanderbilt Beach Property Owners Association v. Department of Environmental Regulation and Easy Bay Development Corporation, Case No. 79-1979 (January 7, 1980); Beacon "21" Condominium Owners Association, Inc. v. Department of Environmental Regulation and Underwood Mortgage and Title Co., Case No. 79-2272 (March 20, 1980); Sales of Capri Civic Association, Inc. v. Department of Environmental Regulation and William Capri Marina, Inc., Case No. 79-2415 (April 11, 1980); Florida Bi-Partisans Civic Affairs Group v. State of Florida Department of Environmental Regulation and Sage, Case No. 79-100 (December 11, 1979); Crystal River Protective Association, Inc., et al. v. Department of Environmental Regulation and Central Development Corporation, Case No. 76-1100
(November 2, 1977). In Crystal River, supra, the issue of "dredging" by virtue of driving pilings was dealt with directly in a June 14, 1977, interlocutory order by Division of Administrative Hearings Hearing Officer, Diane Tremor.
The Department recognizes that pilings are not 'fill" within the meaning of Section 253-123, Florida Statutes, because existing lands or islands are not being extended and the Department has never required "local approval" for marinas under Section 253.124, Florida Statutes. Therefore, it must be concluded that "pilings" projects such as marinas are "dredging" projects.
I am specifically rejecting the second footnote which appears on page 11 of the Recommended Order.
The dictum is unnecessary in determining the outcome of the instant application. Further, the speculation involved in this dictum is erroneous. DER has adopted several provisions designed to avoid undue hardship in appropriate cases while applying the strictest criteria possible to protect the Biscayne Bay Aquatic Preserve in those cases where no relief to the applicant
can be granted without violating the spirit of the Aquatic Preserve Acts and the rules promulgated to protect Outstanding Florida Waters. For instance, in appropriate cases, there are general "exemptions" (Section 17-4.241, Equitable Abatement Section 17-4.242(2), and Mixing Zones (Section 17-4.244). The single piling analogy is not accurate. A single ruling or even a number of pilings for private docks up to 500 square feet over water surface are exempt from the permitting rules under Section 17-4.04(10)(c), Florida Administrative Code.
RULINGS ON EXCEPTIONS
The exceptions of Petitioners and Department staff have been substantially adopted.
The exceptions of Respondent, Grove Isle, Inc., are rejected on the following grounds:
Exceptions 1,2,8 - The hearing officer misapplied as a matter of law the mixing zone provisions of Section 17-4.244, Florida Administrative Code. In addition, Section
403.087, Florida Statutes, deals with sources which may reasonably be expected to be sources of pollution. The fact Respondent applied for a permit indicates it accedes
to that point.
Exceptions 3,4,5,6 - The Department is required to consider the requirements of Chapter 258 in its permitting process.
In addition, Biscayne Bay, as an aquatic preserve, was designated by rule as an Outstanding Florida Water.
Exception 7 - An administrative hearing is conducted for the purposes of formulating final action. Respondent was notified of a change in Department staff
position after remand to the hearing officer.
Exception 8 - This exception relates to a Finding of Fact of the hearing officer. An agency head may not overturn a Finding of Fact unless where is no competent evidence to support such a finding.
Exception 10 - A final order denying the permit was entered within 45 days of the original Recommended Order. See Final Order dated April 7, 1980.
Exception 11 - The 90 day licensing period prescribed by Section 120.50, Florida Statutes, is tolled by the filing of a Petition for Hearing. Petitioners timely filed such a Petition, thereby tolling the licensing period.
WHEREFORE, based on the fact that the applicant has failed to demonstrate that its project is affirmatively in the "public interest" and it is undetermined whether the applicant can meet ambient water quality standards within the project area itself, the applicant has the Burden of Proof, I am adopting the hearing officer's final recommendation that the permit be denied.
DONE AND ORDERED this 29th day of December, 1980 in Tallahassee, Florida.
JACOB D. VARN
Secretary
Department of Environmental Rwgulation 2600 Blair Stone Road
Tallahassee, Florida 32301
(904) 488-9730
FILING AND ACKNOWLEDGMENT FILED, ON THIS CASE, PURSUANT TO SECTION 120.52(3) FLORIDA STATUTES, WITH THE DESIGNEE DEPARTMENT CLERK, RECEIPT OF WHOM IS HEREBY ACKNOWLEDGED.
12/29/80
LINDA BEHARD
COPIES FURNISHED:
David A. Doheny, Esq. 1111 South Bayshore Drive Miami, FL 33131
Larry Stewart, Esq. Frates, Floyd, Pearson, Stewart, Richmond & Geer One Biscayne Tower
25th Floor Miami, FL 33131
Randall Denker
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, FL 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 08, 1980 | Final Order filed. |
| Feb. 22, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 07, 1980 | Agency Final Order | |
| Feb. 22, 1980 | Recommended Order | Issue the requested permit to build a marina. Reasonable assurances were given that environmental impact will be minimal. |
