STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES F. BAER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-621

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matter by H.E. Smithers on October 31, 1980, Tavernier, Florida. The parties were represented by G. Miriam Maer for the Petitioner and H. Ray Allen for the Respondent.

This cause commenced with the filing by James F. Baer (Petitioner or Baer) with the Department of Environmental Regulation (Respondent or DER) of an application in December, 1979 to construct a 130-foot dock into the Atlantic Ocean from Plantation Key, Monroe County, Florida, dredge a 330-foot channel and 70-foot x 100-foot turning basin, and construct a stone breakwater (P 2). The Respondent issued its intent to deny on March 7, 1980 alleging the elimination of 25,000 square feet of productive marine habitat and nursery area, and the channel and basin would create a topographical discontinuity and act as a trap for silt sediments and organic debris (P 8). The Respondent also contends the application is incomplete since it does not have local approval or authority to use state land.

This is the third attempt by the Petitioner to construct some type of facility that would provide protection for, and permit the use of, his 43-foot Hatteras and 20-foot Robalo. The first attempt was for an upland basin. The last attempt was for a 350-foot long pier with stone breakwater at the end.

This was approved by DER but denied by the Corps. of Engineers (COE) on the grounds that the facility would be a hazard to navigation.

This is the plan that everyone, except COE, prefers; the instant application was an attempt to satisfy both agencies. During the hearing, an alternative plan was presented that takes advantage of an existing mole and channel on the southern boundary of the adjacent property on the North that is owned by Chambers (P 14). As further background, it should be noted that Marcus, adjacent to Baer on the South, has recently dredged his channel further seaward; and Coral Harbor, a large condominium project 1/4-1/2 mile north of Baer, has only recently been permitted to dredge a large upland basin and channel.

The issue is whether or not the applied-for permit should be issued.

In addition to Mr. Baer, the Petitioner presented the evidence and opinions of experts in marine construction (Wilson), near-shore hydrographics (Michel),

and marine biology (Thomas). Petitioner's Exhibits P 1 through 15 (except 13, which was withdrawn) were received into evidence.

In addition to the deposition of Dumas, who had performed DER's original appraisal in this case, the Respondent presented three of its employee-experts: Environmental Specialist Meyer; Biologist, Supervisor I Helbling; and Standard Form Permitting Section Administrator Craft. Respondent's Exhibit R 1 (results of three grab samples) was objected to as hearsay, and ruling was reserved.

Although persons taking and sorting the samples were not available and the method used was not preferred, the results merely corroborate the testimony as to the type and variety of animal life in the area. Therefore, it is received into evidence.

The basic facts are not in dispute; the opinions of the effect of the project on the biota and water quality are opposite. However, a review of the knowledge, skill, education, experience and training of Wilson, Michel and Thomas, as compared to Dumas, Meyer, Helbling and Craft, establish that Petitioner's witnesses are much more qualified and their expert opinion is entitled to considerably more weight. It should further be noted that, except for Helbling, all of Petitioner's witnesses were substitutes for DER employees originally involved with the recommended intent to deny. As such, these witnesses appeared to merely corroborate the prior findings and opinions without establishing a proper predicate for such procedure.

The parties submitted proposed findings of fact and conclusions of law.

Obviously, each espoused their own experts' opinions. To the extent that DER's proposed findings of fact are based upon their experts' opinions, its proposed findings of fact are specifically rejected. Otherwise, the proposed findings of fact have been considered and included unless irrelevant, immaterial or conclusory statements.

FINDINGS OF FACT

Having considered the testimony and exhibits, observed the witnesses and determined that the expert opinions of the witnesses presented by the Petitioner should be accorded greater weight than that of the Respondent, the following findings of fact are made:

1. The Petitioner, James F. Baer, and his family own two contiguous parcels of land between the Atlantic Ocean and U.S. Highway 1 at mile marker 88, Plantation Key, Monroe County, Florida. One tract was purchased in 1974, and the other in October-November, 1979. Together, the tracts are about five acres,

   300 feet deep.

   
   

2. The acquisitions involved an attempt to maintain the property in its natural state as a single-family estate, provided some type of facility for Petitioner's boats could be made. Approval has been sought since 1976 for an upland basin, then a dock and breakwater and now the instant application. Baer's alternative proposal of using the area immediately south of the existing mole and channel owned by Chambers, contiguous on the north, also has merit; however, DER personnel also opposed this offered compromise.

   
   

3. The Petitioner's expert witnesses concluded that the construction and use of the proposed project would not adversely impact on the water quality or biological resources, nor interfere with navigation. The offshore bottom is typical of Class III waters on the ocean side of the Keys. The bottom, cap rock covered with some sediment, slopes down very gradually seaward. To a depth of

   five feet, other than sparse, and an occasional patch of turtle grass or shoal weed, the area does not have nursery capabilities. The lower food chain animals that exist at the site would not be adversely affected. Also, to the five-foot level, the wave and tidal action, even in channels, produces a flushing action that maintains the water-quality standards.

   
   

4. Local approval had not been obtained by the Petitioner since DER had not timely furnished the required biological assessment that is forwarded to the local authority. Also, the payment to the Department of Natural Resources for removal of material in dredging the channel and basin is tantamount to the approval of the use of state-owned lands.

   
   

5. According to Petitioner's photography (Exhibit P 10), this property appears to be the last one in the area that would seek such a facility. To deny the facility might encourage the Petitioner to sell the land for a high-density condominium project. DER's concern with the cumulative effect of the project (Exhibit P 6, page 4) is opinion unsupported by any facts.

   
   

   CONCLUSIONS OF LAW

   
   

6. Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, permit an upland owner to reasonably use his property for recreational purposes, provided he shows that the proposed facility will not interfere with the conservation of natural resources, marine productivity and navigation to such an extent as to be contrary to the public interest. The Petitioner has provided reasonable assurances that its proposed facility will not adversely affect water quality in the area, will not substantially impact marine vegetation or marine animal habitat, and will not create a navigational hazard or serious impediment to navigation. This is even more particularly true for Petitioner's alternative proposal to move the project to his property's northern boundary and further seaward.

   
   

7. The Florida Keys area has been designated as an area of critical state concern (Section 380.0552, Florida Statutes). The implementing Rule Chapters 22-F-8 provides for the conservation, protection and maintenance of both the

natural environment and the public investment. The upland basin and channel for Coral Harbor condominium's 10 acres will obviously place greater stress on the public facilities and natural environment than applicant's single-family estate on five acres with either of the proposed recreational boat facilities. Surely, preserving the Baer property to its intended use by permitting a facility having insignificant environmental impact is in the public interest.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue a permit

to authorize the Petitioner to construct and use a boating facility at the northern boundary of his daughter's property to consist of a channel, turning basin, breakwater and boat dock/pier, more specifically, a five-foot-deep x 25- foot-wide channel adjacent to and in connection with the Chamber's channel, a quarry-stone breakwater the same distance seaward as the Chamber's mole, a five- foot-deep 70 foot x 100 foot-turning basin landward from the breakwater, with a boat dock/pier from the breakwater to the upland. Alternatively, it is

RECOMMENDED that the Department of Environmental Regulation issue a permit to authorize the Petitioner to construct and use the boating facilities as contained in his application.

DONE and ENTERED this 29th day of January, 1981, in Tallahassee, Florida.

H. E. SMITHERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1981.

COPIES FURNISHED:

1. Miriam Maer, Esq. 888 Brickell Avenue Second Floor

   Miami, FL 33129

   
   

2. Ray Allen, Esq. Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301

Docket for Case No: 80-000621

Orders for Case No: 80-000621