STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISLES OF CAPRI CIVIC ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2415

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and ) WILLIAMS CAPRI MARINE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case, consolidated with case No. 79-1791, involving this Petitioner with the Department of Environmental Regulation (DER) and Williams Capri Marine, Inc. (WCMI) as Respondents, on 7 February 1980 at Naples, Florida.

APPEARANCES

For Petitioner: James R. Brindell, Esquire

Post Office Box 3103 Tallahassee, Florida 32303

For Respondent, Kent A. Zaiser, Esquire Department of Assistant Department Attorney Natural Department of Natural Resources

Resources: Crown Building

202 Blount Street Tallahassee, Florida 32301

For Respondent, Ray Allen, Esquire and Department of William W. Deane, Esquire

Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent, Ken van Assenderp, Esquire Williams Capri Post Office Box 1833 Marine, Inc.: Tallahassee, Florida 32302

In case No. 79-1791 Petitioner objects to the Department of Natural Resources' (DNR's) proposed lease to WCMI of 0.98 acre of submerged land for use in connection with the installation of a marina. In case No. 79-2415 Petitioner objects to DNR's intent to issue a permit to WCMI to dredge a portion of the to- be-leased submerged land and to construct docking facilities thereon. As grounds for opposing both the lease and permit, it is alleged that the project would destroy productive marine habitat and adversely affect the ecosystem,

would eliminate this area from use by the general public, would increase boat traffic and thereby increase the hazards to navigation, would result in damage to seawalls due to increased boat traffic, would subject the area to increased pollution, would interfere with an adjacent area dedicated for a public park, would interfere with riparian rights of adjacent property owners, would increase vehicular traffic, and that the property owners on the Isles of Capri oppose the project. In addition, it is alleged the comprehensive plan required by s.

235.03(7), Florida Statutes, has not been created; therefore, the proposed lease must be incompatible with the Public interest. With respect to case No. 79-1791 it is further alleged that the proposed rental fee is so low as to violate the fiduciary duties of the Board of Trustees of the IITF.

Since the same facts were relevant to both petitions these cases, at the request of the parties, were consolidated for hearing. However, two Recommended Orders are submitted.

At the commencement of the hearing, one witness was called by Respondent, DER, and one witness was called by Respondent, ONE, to present documentation that the procedural requirements and required data had been submitted to these Respondents by the applicants and Respondent, WCMI; that the project had been evaluated by the staffs of these Respondents; and that the project had received their approval. Thereafter, Petitioner called 24 witnesses, including agents of Respondent WCMI, residents of the Isles of Capri, and expert witnesses; Respondents called 9 witnesses, including its agents previously called by Petitioner; and 42 exhibits were offered into evidence. Exhibit 30 was withdrawn before it was identified, but the number was skipped when the next exhibit was offered. Accordingly, exhibit 30 was never offered into evidence and does not exist. Ruling on the objection to exhibit 27 on grounds of hearsay was reserved at the hearing. Exhibit 27 is an affidavit of two residents of the Isles of Capri wherein they state reasons for opposing the proposed marina, which reasons are identical, or nearly so, to the reasons given by the other witnesses. This hearsay evidence is admissible as corroborating other testimony. Accordingly, Exhibit 27 is now admitted into evidence with the other exhibits admitted at the hearing.

At the close of Petitioner's case, Respondent WCMI moved for a directed verdict on grounds that Petitioner had not rebutted Respondent's prima facie case. Ruling on this motion was reserved. In view of the Hearing Officer's questionable authority to enter an order finally disposing of either petition, this motion is denied.

Proposed Recommended Orders have been submitted by the parties here to and have been considered by the Hearing Officer. Those proposed findings not included herein were not considered relevant and material to the issues, were not supported by competent and substantial evidence, or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. By application (Exhibit 1) dated September 15, 1978, WCMI requested a permit to dredge approximately 740 cubic yards of sovereign bottom lands in Snook Bay adjacent to upland property owned by applicant. At the same time applicant requested a lease of some 0.98 acres of submerged sovereign land, containing the area to be dredged, for the purpose of constructing a marina with docking facilities over the leased property.

2. Following receipt of all requested information from applicant, plus objections from adjacent land owners, DNR, as the state agency acting on behalf of the Trustees Internal Improvement Trust Fund (TIITF) , held a public hearing in Naples, Florida on April 25, 1979. The Hearing Officer submitted a report following this hearing in which he recommended the lease be granted (Exhibit 4). After review DNR staff recommended granting the lease and before the Trustees took action, Petitioner requested this hearing.

   
   

3. In the interim DER reviewed the application for a dredge and fill permit and, following a preliminary investigation, advised WCMI of its intent to deny the permit (Exhibit 8).

   
   

4. At informal conferences with DER, WCMI revised its application to commence the dredging 25 feet from the existing seawall, reduce the amount of material to be dredged to 349 cubic yards and to move the floating dock sections further from the seawall. This revised application (Exhibit 10) was submitted to DER and, after review, DER on November 13, 1979 (Exhibit 11) issued its notice of intent to grant the requested permit. Petitioner then requested this hearing to contest the granting of this permit.

   
   

5. The Isles of Capri was developed into a waterfront homesite project by bulkheading, dredging and filling a pristine mangrove area to provide the homesites now occupied by members of Petitioner. This project destroyed the ecosystem as it existed before the development. The area which is here proposed for lease and for a permit to dredge some 349 cubic yards therefrom is located in the originally disturbed area.

   
   

6. Most of the homes on the Isles of Capri are built on waterfront lots and most homeowners have docks and boats. Fishing is generally considered good off the docks and in surrounding waters. The proposed marina is located in Snook Bay, a relatively small cul-de-sac-like area. On the dead end of Snook Bay, which is adjacent to the proposed marina, mangroves have been planted and the area designated as a park. Since these mangroves are rat infested, the park concept has not received general acceptance. However, the proposed marina will not adversely affect this park.

   
   

7. Apart from the ecological problems that will allegedly be created by the leasing of the property and the dredging thereon, petitioner alleges the project will interfere with other "rights" of the homeowners of the Isles of Capri. Although this Hearing Officer has considerable doubts as to the validity of these alleged rights, the facts presented relating thereto will be first considered.

   
   

8. WCMI owns the uplands adjacent to this submerged land and this land is zoned General Retail Commercial, which includes use as a proposed marina. Use as a marina would create less additional vehicular traffic than would any of the other 12 uses considered most likely for this land. (Testimony of Barr)

   
   

9. The proposed marina will provide wet dock space for 32 boats and dry storage for 116 boats in sheds with the boats stacked three-high. No ramps will be provided and boats will be launched and picked up by use of a forklift at the concrete seawall. Parking space for 54 vehicles will be provided. This parking space complies with local requirements, as does WCMI's proposed construction.

   
   

10. Collier County and the area of Collier County in the vicinity of Isles of Capri is an area of rapidly increasing population. A need for some six additional marinas has been recognized by Collier County authorities.

11. Numerous witnesses opposed the use of WCMI property as a marina because:

    
    

    1. They do not think the site is suitable for a marina, and a much smaller marina would be preferred.

    2. Installation of a marina would increase boat traffic, thereby increasing the risk of boat collisions, increase wake action which might damage seawalls, disrupt the peace and quiet now enjoyed by these residents, and

       increase the possibility of boats striking manatees.

    3. Property values in the vicinity of the proposed marina and elsewhere in the Isles of Capri might decline.

    4. Operation of a marina would increase the noise level, thereby disturbing occupants of residences closest to the proposed marina.

    5. Vehicular traffic would be greatly increased on the Isles of Capri once the marina commences operation.

       
       

12. Most of these objections are beyond the jurisdiction of this tribunal. This property has been zoned for the use proposed and if this use is inappropriate, the proper recourse is with the local zoning authorities.

    
    

13. The credible evidence submitted is that the operation of the marina would increase boat traffic in and out of Snook Bay some 20 round-trips per day and this increase will create and insignificant additional risk of collision with other boats or with the occasional manatee that is sighted. While most of this traffic will use the deeper channel that follows the seawalls and boat docks of residents, an alternate channel is available for use by boaters with local knowledge of its characteristics. Even if all traffic used the deeper channel, no serious hazard to navigation would thereby result.

    
    

14. No credible evidence was presented that the increased boat traffic caused by the marina would increase the damage to a properly constructed seawall. Navigation of these waters is a right to be jealously guarded. If wave damage results, local authorities have jurisdiction to establish speed or wake restrictions. Furthermore, the more credible evidence presented was that at the Isles of Capri more subsidence of soil behind the seawalls is caused by tidal action than by wake action.

    
    

15. No credible evidence was presented that the operation of the proposed marina would decrease property values. Even if this could be shown, such a use would be consistent with the usage for which this property is zoned. There are two marinas across the street from WCMI's proposed marina and no evidence was presented that the operation of ties smaller marinas affected property values. The uncontradicted evidence that was submitted was that property values on the Isles of Capri have increased at a rate as great as, if not greater than, land values elsewhere in Collier County.

    
    

16. The roads on Isles of Capri are presently operating far below capacity and the additional traffic expected to be generated by the proposed marina will have no significant impact on these roads, nor will the construction of the marina create any vehicular safety problems.

17. Petitioner's contention that the construction and operation of the marina will create additional pollution because of septic tank, oils and greases, and water runoff from impervious surfaces is not well-placed. It is not well-placed in the first instance because this is not the proper forum in which to air these complaints. Local health and safety ordinances regulate the installation of septic tanks, installation of fueling facilities and retention of water falling on the property. Secondly, the evidence presented here is that WCMI will comply with all regulations regarding septic tanks, no live-aboard boats will be moored at the marina other than temporarily for fuel or supplies, fuel tanks will be underground on the upland area, provided with proper protection and insulation, and the fuel will be dispensed by hose from the fueling dock by experienced personnel. WCMI will provide containment booms and retrieving material to take care of the accidental spill that might occur.

    
    

18. Collier County Ordinance requires the first 1-inch of rainfall be retained on the property and WCMI will comply with this requirement.

    
    

19. From the testimony of the numerous residents who testified, the primary concern of most of those who object to the proposed installation is that "their" waters will become more available to people living elsewhere and this will somehow detract from the use and enjoyment of those waters by these residents. If access to the Isles of Capri is facilitated for people living elsewhere by the installation of this marina, these waters will become more crowded, resulting in less fish per resident, and this aquatic preserve will become less private and more available to the general public. These residents purchased their homesites because of the waterfront characteristics and the quietness and solitude of the area. Facilitating access by nonresidents will necessitate sharing these waters with these nonresidents, thereby detracting from the enjoyment residents hoped to retain undiminished forever.

    
    

20. The allegations of Petitioner that merit the most serious consideration in both of these applications of WCMI involves those relating to the ecosystem. Petitioner contends that the proposed dredging will adversely affect the ecosystem and this requires denial of the dredge-and-fill permit. Without the permit the lease would be useless. Petitioner also contends the granting of the lease would be contrary to the public interest.

    
    

21. WCMI's original application was to dredge from the seawall seaward some 60 feet until the desired depth contour was reached. Also, floating concrete docks would be adjacent to the seawall for berthing sites. When an inspection of the area disclosed the bottom grasses were heaviest from the seawall out to about 30 feet, the applicant was issued the Notice of Intent to Deny by DER because of these bottom grasses and the shading that would be caused by the floating docks. WCMI then proposed to do no dredging for the first 25 feet from the seawall, except for two areas 30 feet and 36 feet wide needed to launch boats, and also to move the floating docks 25 feet from the seawall so as not to shade the grassy areas.

    
    

22. As noted above, the site under consideration was severely disturbed by the initial dredging which destroyed the original grassbeds at this site. Some of these grasses have now returned but the coverage is sparse and patchy. From the seawall out to about 30 feet the grass is Cuban shoalweed and manatee grass. Respondent's investigations and studies revealed only these two grasses. Petitioner's biologist who performed studies similar to those done by Respondent found halophila in the deeper waters (up to five feet) extending out as far as

    60 feet from the seawall. Halophila is a more ephemeral grass that grows in

    deeper depths than Cuban shoalweed and manatee grass and is often found in previously dredged areas.

    
    

23. The area proposed for dredging comprises some 1200 square meters, and seagrasses cover about one-fourth of the dredge area. Sample cores taken by Petitioner's expert in October while the more luxuriant summer growth predominated showed some 1600 blades of grass per square meter, while the winter sample taken by WCMI expert showed 467 blades per meter.

    
    

24. In the 320 square meters of seagrasses in the area a total biomass of invertebrates was found to be 17 pounds. Using generally accepted conversion rates and invertebrate reproduction cycles to convert this biomass to fish, this weight of invertebrate biomass could be converted into between 2 and 10 pounds of fish annually.

    
    

25. Removal of the seagrasses will remove feeding grounds and hiding areas for some types of aquatic animals and also take away the type of fish that inhabit such areas. On the other hand, the piling and other docking structures that will be installed will attract sessile organisms such as oysters, barnacles, etc. which currently attach themselves to rocks and mangrove roots in the vicinity. The biomass or weight of these organisms is likely to equal or exceed those to be lost by dredging away the seagrasses. The different types of fish will be attracted to the area where the shellfish and other attaching animals congregate than will be attracted to grassy bottoms, the change is not significant from a quality or quantity of fish point of view.

    
    

26. The area to be dredged is an area that has partially recovered from its earlier destruction and there is no reason to believe a similar recovery will not recur after the dredging here proposed is completed.

    
    

27. No evidence was presented that a collision between a boat and a manatee has ever occurred in the waters in the vicinity of the Isles of Capri. Any conclusion that such an incident is likely to occur because of increased boat traffic when the proposed marina is in operation would be sheer speculation. Furthermore, Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. Nor is Snook Bay one of those areas where a concentration of manatees is likely to occur.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

29. The authority of DER to issue the requested dredge-and-fill permit and the conditions under which such permit may be issued is contained in section 253.123(2) which provides in pertinent part:

    
    

    The removal of sand, rock or earth from the navigable waters of the state . . . by dredging, pumping, digging, or any other means shall not

    be permitted except in the following instances:

    (d) For other purposes when, but only when, the board of trustees has determined, after consideration of a biological survey and an ecological study and a hydrographic survey, if such hydrographic survey is required by the

    board, made by or under the supervision of the Department of Natural Resources of the area from which such sand, rock or earth is pro- posed to be removed, that such surveys and study show that such removal will not inter- fere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public

    interest, and 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 as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests.

    
    

    s. 11, ch. 75-22 transferred all powers of the Trustees IITF relating to permits and licensing to DER.

    
    

30. The above findings of fact clearly show that the area in which the proposed dredging is intended is the same area in which the natural habitat was destroyed circa 1961 and has not regained the posture of an area significantly useful as a nursery or feeding ground for marine life. Accordingly, the removal by dredging in this area of the sparse and patch grass beds for the purpose of providing needed marina facilities is not contrary to the public interest. Here the invertebrate biomass to be removed as a result of the dredging will be replaced by an equivalent biomass of mollusks and shellfish which will attach themselves to the piling and floating docks. No oyster beds or clam beds are in the dredged area and the evidence presented shows that the loss of marine productivity as a result of the dredging to be performed is not to such an extent as to be contrary to the public interest.

    
    

31. Although there was little testimony respecting the need for another marina in Collier County, the testimony was unrebutted that the Collier County development plan calls for six additional marinas. It therefore appears that the construction of the proposed marina is in the public interest and this interest outweighs the unfavorable impact on the ecosystem that will be caused by the removal of 320 square meters of grassbeds.

    
    

32. Petitioner's contention that the increased traffic caused by the operation of the proposed marina will create a hazardous navigational situation is wholly unsupported by the facts adduced. Likewise, the arguments regarding the increased danger to the manatee is totally speculative. No evidence was presented that a collision between boat and manatee has ever occurred in the waters off the Isles of Capri and there is no basis for speculating that such an eventuality may occur in the future if the proposed marina becomes operational. Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. There is absolutely no basis for concluding that the speculative danger to manatees makes the operation of the marina contrary to the public interest.

    
    

33. From the foregoing it is concluded that the issuance of a permit to dredge 349 cubic yards in an area of 1200 square yards sparsely covered with

grassy patches which was previously grossly disturbed when the dredging and filling was done to convert a mangrove habitat to residential waterfront lots, is not contrary to the public interest. It is therefore

RECOMMENDED that Williams Capri Marine, Inc. be issued a permit as proposed by DER in its letter of November 13, 1979.

Entered this 29th day of February, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

James R. Brindell, Esquire Post Office Box 3103 Tallahassee, Florida 32303

Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building

202 Blount Street Tallahassee, Florida 32301

Ray Allen, Esquire and

William W. Deane, Esquire Department of Environmental

Regulation

Tallahassee, Florida 32301

Ken van Assenderp, Esquire Post Office Box 1833 Tallahassee, Florida 32302

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

ISLES OF CAPRI CIVIC ASSOCIATION,

Petitioner,

vs. CASE NO. 79-2415

STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION, and WILLIAMS CAPRI MARINE, INC.,

Respondent.

/

FINAL ORDER

On February 29, 1980, the Division of Administrative Hearings' (DOAH) hearing officer assigned to conduct a Section 120.57(1), Florida Statutes, hearing in the above-styled cause, submitted his Recommended Order, attached hereto as Exhibit A, to the Department of Environmental Regulation. On March 10, 1979, Petitioner, Isles of Capri Civic Association, filed exceptions to the Recommended Order pursuant to Section 120.57(1)(b)8, Florida Statutes, and Section 17-1.68(1), Florida Administrative Code. Petitioner also submitted a request for oral argument which was denied. Respondent, Williams Capri Marine, Inc., submitted a response to Petitioner's exceptions to hearing officer's Recommended Order. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter.

Rulings On Exceptions to Recommended Order

1. Petitioner's exceptions, 1 through 20, anew the first part of exception 25, dispute findings of fact of the hearing officer. Section 120.57(1)(b)9, Florida Statutes, expressly provides that:

   
   

   "The agency may adopt the recommended order

   as the agency's final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based open competent substantial evidence or that the proceedings on which the findings were based did

   not comply with essential requirements of law. . ." (emphasis supplied)

   While the record of this proceeding was preserved by a certified court reporter pursuant to Section 120.57(1)(b)6., Florida Statutes, Petitioner has chosen not to bear the cost of and furnish a written transcript of the hearing for my consideration. Thus, without the complete record before me to review, I am without the authority to change, modify, or amend the hearing officer's findings of fact.

   
   

   Even if a transcript had been furnished, many of the points raised as exceptions by Petitioner are harmless error. A trier of fact is entitled to some latitude in the weight given to evidence and in attaching credibility to the testimony of witnesses at a hearing. Accordingly, the exceptions 1-16, 18,

   20 and the first part of 25 of Petitioner are rejected. Exception 17 is adopted since as a matter of law the hearing officer treated Petitioner as if it had standing, though no finding was made. Petitioner's exception 19 is adopted.

   
   

2. Petitioner's second group of exceptions, 21 through 24 and the last part of 25, take exception to conclusions of law of the hearing officer. Exception 21 relates to the basis for the hearing officer's finding that a prima facie case had been presented by the Department and the applicant. Regardless of whether the hearing officer erred in making that finding, the error was harmless since there was sufficient evidence to show the applicant qualified for the permit. Accordingly, that exception is rejected. Exception 22 is rejected. Even if error had been committed by the hearing officer in regard to the omitted conclusion of law, such omission would have been harmless error in view of the findings of the hearing officer. Exception 23 is rejected since the findings of fact and conclusions of law adequately deal with that point. Exception 24 is adopted and the finding by the hearing officer that this is not the proper forum to consider impacts on pollution from septic tanks, oils and greases, and stormwater runoff is rejected. The second part of exception 25, dealing with the conclusion of law that the proposed dredging is not contrary to the public interest is rejected since the hearing officer adequately supported that conclusion in the Recommended Order.

Conclusion and Order

Having considered the Recommended Order, including the findings of fact and conclusions of law, Petitioner's exceptions, Respondent's response to exceptions, it is therefore:

ORDERED that the Department issue a permit to Respondent, Williams Capri Marine, Inc., as modified by Respondent at the hearing. This modification includes the elimination of one access channel from the docks to the seawall. The permit should include the standard conditions attached to such permits and be subject to all qualifications contained in the application for permit. The permit shall be issued by the District Manager within twenty (20) days of this Final Order.

DONE AND ENTERED this 11th day of April, 1980, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-4807

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to RAY ALLEN, ESQUIRE, WILLIAM W. DEANE, ESQUIRE,

Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301; KEN VAN ASSENDERP, ESQUIRE, Post Office Box 1833, Tallahassee, Florida 32302; JAMES R. BRINDELL, ESQUIRE, Post Office Box 3103, Tallahassee, Florida 32303; and, K. N. AYERS, HEARING OFFICER, Division of Administrative Hearings, Room 101, Collins Building, Tallahassee, Florida 32301, this 11th day of April, 1980.

TERRY COLE

General Counsel

Docket for Case No: 79-002415

Orders for Case No: 79-002415