STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN K. and PATRICIA S. )

HOLZBAUER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1947

) 82-2314

MR. and MRS. FREDERICK RANKIN and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on February 16, 1983. The petitioners appeared on their own behalf. The other parties were represented by counsel:

APPEARANCES

For Respondents: Thomas R. Santurri, Esquire Mr. and Mrs. 421 North Palafox Street Frederick Rankin Pensacola, Florida 32501

For Respondent: E. Gary Early, Esquire Department of Twin Towers Office Building Environmental 2600 Blair Stone Road Regulation Tallahassee, Florida 32301

ISSUES

Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?

FINDINGS OF FACT

1. On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported:

   Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point.

   DER Exhibit No. 4.

   
   

   Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette.

   
   

   PERMIT ISSUES

   
   

2. DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit.

   
   

3. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated:

   
   

   It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301.

   
   

   If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1.

   
   

   A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's

   Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/

   
   

4. This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his

   matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314.

   
   

   NO PERMIT RELIANCE

   
   

5. The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about

   15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not

   19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock.

   
   

   NAVIGATION

   
   

6. While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No.

1. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is

   81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Petitioners received notice of agency action within the meaning of DER rules when Mr. Holzbauer saw men at work on pilings on June 12, 1982, and so gained "knowledge which would lead a reasonable person to conclude, or upon diligent inquiry to discover," Rule 17-1.62(2)(a), Florida Administrative Code, that DER had issued a permit to the Rankins. Inquiry was in fact made and Mr. Holzbauer was told that the permit had been issued. DER rules provide:

      
      

      Failure of a substantially affected person to file a petition within fourteen (14) days of receipt of notice of proposed agency action, whichever notice first occurs, shall constitute a waiver by that person of any

      right to request an administrative proceeding under Chapter 120, F.S. Rule 17-1.62 (1)(b), Florida Administrative Code.

      
      

      But DER concedes that the fourteen days should run in this case from the day the Holzbauers received Mr. Fancher's letter. The applicants' contention to the contrary cannot be reconciled with the decision in Manasota-88, Inc. v. State of Florida Department of Environmental Regulation, 417 So.2d 846 (Fla. 1st DCA 1982), where the court held that a third party objector's petition for hearing was not untimely even though it came three to four months after DER had notified the petitioner in writing that the permit had issued, because DER's letter had "failed to mention. . .[the] right to request a hearing, to set forth the time limit for requesting a hearing, and to refer to the applicable procedural rules of the agency." 417 So.2d at 847. In the present case, petitioners were advised that they had 14 days from receipt of DER's letter in which to file and did so.

      
      

      DIFFERENT CASE NUMBERS

      
      

   2. DER and the Rankins argue that the order entered on July 28, 1982, dismissing the Holzbauers' original petition precludes de novo consideration of the Rankins' permit application. Respondents Rankin contend that the July 28, 1982, order should be given res judicata effect and DER contends that, as a consequence of the order entered July 28, 1982, the Holzbauers' amended petition is untimely. Specifically DER argues:

      
      

      Petitioners' first petition, received July 8, 1982, was submitted in a timely manner, 12 days from the date of notice. However, the petition did not request a hearing, and so was dismissed by the Division of Administrative Hearings.

      
      

      Petitioners second petition was submitted on August 10, 1982. Therefore a petition for hearing was not submitted to the Department until 45 days from the date of the notice of agency action. Even assuming the 14 day clock was stopped during the time between the date the Department received the first Petition and the date it was dismissed, the second petition was not received until 25 days after notice of agency action. The petition was therefore not timely. DER's Proposed Findings of Fact, Conclusions of Law and Recommended Order, p. 4 [paragraph numbering omitted].

      
      

      Perhaps neither of these arguments would have been made if, when the Division of Administrative Hearings received the Holzbauers second or amended petition, it had been assigned the same case number as was originally assigned to the case, No. 82-1947. Instead, a second case number, No. 82-2314, was assigned.

      
      

      SAME CASE

      
      

   3. The contention that the July 28, 1982 order should be given res judicata effect must be rejected. It is clear that the July 28, 1982 order should be viewed not as a final order in some other case but as an interlocutory

      order in the present case. The order was not in the form of a recommendation to the Secretary of the Department of Environmental Regulation for final action.

      It was explicitly interlocutory, "without prejudice." Although a time limit for filing a second, amended petition was not specified, the Holzbauers amended petition was in fact filed eleven days after the July 28, 1982 order, clearly within a reasonable time. Since more than 14 days had elapsed from the June 26 date of official notice to the Holzbauers, when the July 28 order was entered, the only way to give effect to the language "without prejudice" is to interpret the order as authorizing the filing of an amended petition within a reasonable time.

      
      

      RELIANCE NOT SHOWN

      
      

   4. The law is clear that simple issuance of a permit does not operate to cut off the rights of third party objectors, who have not been afforded a "clear point of entry" into administrative proceedings, including an opportunity to petition for formal hearing. Manasota-88, Inc. v. State of Florida Department of Environmental Regulation, 417 So.2d 846 (Fla. 1st DCA 1982); Sterman v. Florida State University, 414 So.2d 1102 (Fla. 1st DCA 1982); Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346, (Fla. 1st DCA 1978). As regards third parties, a Department of Environmental Regulation permit which has not been preceded by a notice of intent to issue, has the same legal effect as a notice of intent to issue. See Rule 17-1.62, Florida Administrative Code.

      
      

      [O]nce a formal hearing is requested, there is no "presumption of correctness" in the mere fact that in preliminary proceedings the Department has issued its "notice of intent" to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion." [Citations omitted] Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

      
      

      The situation is obviously complicated, however, when a project has gone to completion. See, e.g. Anna L. Rowe v. T. V. Rodriquez et al., No. 79-1920 (DOAH Recommended Order adopted by DER June 5, 1980), 2 FALR 1014-A.

      
      

   5. If a permittee has taken substantial steps in good faith reliance on his unquestioned authority to do so, there are strong policy arguments against opening up the question of the permit's issuance to de novo consideration of the kind inherent in proceedings pursuant to Section 120.57(1). But these considerations do not come into play in the present case. Perhaps most importantly the Rankins did not build the dock or place the mooring pilings in accordance with the permit. The record is not clear as to what work had been done by the time of Mr. Fancher's letter of June 24, 1982, the letter that put the Rankins on notice that their permit was under challenge; and the burden to show substantial reliance is on the permit holder. The very day that construction began the men the Rankins employed to build the dock learned of the Holzbauers' opposition. In short, the evidence did not show justifiable reliance on the dredge and fill permit by the Rankins. Cf. Franklin County et al. v. Leisure Properties, Ltd. et al., Nos. AD-395, AE-227, and AF-112 (Fla. 1st DCA; March 9, 1983), 8 FLW 713, 5 FALR 208-J ("good faith reliance [on county ordinance]. . .difficult. . .to show. . .[where building permit applicant] knew the county was opposed to the multi-family zoning and was attempting to change it").

      PETITIONERS SUBSTANTIALLY AFFECTED

      
      

   6. It is incumbent on a third party objector to plead and prove facts that demonstrate party status or standing. Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981), pet. for rev. den. 415 So.2d 1359 and 1361 (Fla. 1982). The Holzbauers pleaded that they have "made use of specific location for past five years for recreational purposes" and that the dock will limit their access to open water. They proved that they live on the bayouette and keep a small sailboat there and that the dock seriously impedes navigation in and out of the bayouette. Protecting navigation is one purpose of Rule 17-4.29, Florida Administrative Code. Petitioners, whose only access to open water is around the Rankins' dock, have a substantial interest that falls within the zone of interest of the applicable Department of Environmental Regulation rule.

      
      

      THE MERITS

      
      

   7. Each "applicant for a license or permit carries the 'ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 784 (Fla. 1st DCA 1981). Docks as large as the ones the Rankins have built are not entitled to exemption from the permit requirements set out in Rule 17-4.29, Florida Administrative Code, among which are

      
      

      that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

      Rule 17-4.29(6)(b) Florida Administrative Code.

      
      

      The applicants, who are now in the posture of seeking a permit for the dock as built rather than as originally proposed, cf. Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981), have the burden to show that it "will not create a navigational hazard, or a serious impediment to navigation. . .so as to be contrary to the public interest." Rule 17-4.29, Florida Administrative Code.

      
      

   8. This burden was not met. The dock was shown to be a serious impediment to navigation. The public interest is not served by placing a dock the length of a football field so that it angles over in front of the mouth of an embayment and crosses the channel or deeper water that allows access into the bayouette. Here the mouth of the embayment is less than 110 feet wide. Boats that dock on the other side of the mouth of the embayment have difficulty maneuvering because of the dock.

      
      

   9. No issue was raised by pleading or proof as to the biological effects of the dock. Petitioners pleaded, "This pier is supposedly private, but will be the longest facility on Bayou Chico." At hearing they sought to prove that the dock was actually used for commercial purposes, without authority from the Department of Natural Resources, but objection to this line of inquiry was sustained on grounds that the petition had not fairly raised the issue.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is.

DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.

ENDNOTE

1/ The letter stated: The purpose of this letter is to officially protest the issuance of a permit D.E.R. #170546461 to Mr. Frederick Rankin on the following grounds. #1 The pier is not in accordance with permit Exhibit #1. Whereas permit shows pier constructed in a northwesterly direction. In actuality it is in a northeasterly direction. #2 This deviation is in direct violation of Section #2 of the D.E.R. general conditions. #3 Invasion of personal rights A) Obstruction of open water view by insertion of pier B) Petitioners have made use of specific location for past five years for recreational uses. C) Marine access for petitioners will be limited to high tide and deviation from direct course to the channel. C.1) Petitioners have a 14 ft. sailboat without motor.

For safe egress to open water hand paddling will be required for a distance of approx. 300-350 ft. C.2) A permit has been previously been [sic] issued to Gulfwater Marine at #6 Lotus Ct. for a pier 130 ft. in length running due north. In order to have access to open water, we will have to encroach on Gulfwater Marine leased underwater area and avoid 65-85 foot boats berthed at that pier. #4 Construction (Pilings) was first observed June 23, 1982, as of July 04, 1982 no permit has been or is presently posted on the site. As required by Article 5 of permit #5 A permit has not been issued by the U.S. Army Corps of Engineers and construction has begun. The corps does not seem to take this seriously. As the matter has been reported and permit will still be issued with a violation attached. #6 Proposed mooring pilings will further restrict petitioners right to open water access. #7 Mr. Rankin does not live at the site, he will not have to look at the pier at home, the petitioners will, the pier is situated almost perpendicular to our yard, cutting off our view and our access to public marine areas. This pier is supposedly private. But will be the longest facility on Bayou Chico.

COPIES FURNISHED:

Thomas R. Santurri, Esquire

421 North Palafox Street Pensacola, Florida 32501

E. Gary Early, Esquire Department of Environmental

Regulation

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

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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

Docket for Case No: 82-001947

Orders for Case No: 82-001947