STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1010 SEAWAY DRIVE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-3029

)

ROBERT R. PHIFER; STATE OF )

FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION; and ) STATE OF FLORIDA, DEPARTMENT ) OF NATURAL RESOURCES/TRUSTEES, ) INTERNAL IMPROVEMENT TRUST FUND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was conducted in this matter on March 18, 1983, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Ross A. McVoy

Tallahassee, Florida

For Respondent Department of

Environmental Alfred J. Malefatto Regulation : Tallahassee Florida

For Respondent

Robert R. Phifer: Appeared on his own behalf

On or about May 5, 1982, Robert R. Phifer filed an application with the Department of Environmental Regulation for a permit to lengthen an existing dock extending from his property. On or about October 15, 1982, the Department issued a letter stating its intent to issue the permit with conditions. The Petitioner, 1010 Seaway Drive, Inc., requested a formal administrative hearing. The Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing. The hearing was scheduled to be conducted as set out above by notice dated December 8, 1982.

In its request for hearing, Petitioner listed the Department of Natural Resources and the Trustees, Internal Improvement Trust Fund, as additional Respondents. The Department of Natural Resources and the Trustees filed a motion to dismiss, which was denied. Prior to the hearing, Petitioner filed a "Notice of Voluntary Dismissal as to the Trustees/DNR." At the hearing, the Trustees and the Department of Natural Resources were formally dismissed as parties.

At the hearing, the Applicant testified as a witness on his own behalf.

Michael Nagy, an environmental specialist employed with the Department of Environmental Regulation, testified on the Department's behalf. Petitioner called the following witnesses: Thomas Book, the owner of property which adjoins the Applicant's property; and J. Walcott Sample, a marine consultant and licensed marine contractor. Petitioner's Exhibits 1 through 7, Applicant's Exhibits 1 through 4, and DER Exhibits 1 through 6 were offered into evidence and received.

The parties have submitted post-hearing legal memoranda, which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences.

The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.

FINDINGS OF FACT

1. The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is

   4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock.

   
   

2. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner

   contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result.

   
   

3. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

5. The Department of Environmental Regulation has permitting authority over the proposed construction of the Applicant's dock extension. Sections 253.123, 253.124, 403.087, and 403.088, Florida Statutes. In reviewing applications for construction activities in navigable waters, the, Department is required to consider navigational impacts and riparian rights of adjoining property owners. Both the Applicant and the surrounding property owners are entitled to a fair and reasonable opportunity to have access to the water body. Johnson v. McCowen, 348 So.2d 357 (1 DCA Fla. 1977). The Applicant's proposed dock extension will allow him an opportunity to safely moor his own commercial fishing craft and that of his son. The proposed extension does not interfere with the access or rights of adjoining property owners. While ingress and egress on both sides of the proposed extension will require more care than at present, it will not be rendered unreasonably difficult.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length.

RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 29th day of April, 1983.

COPIES FURNISHED:

Ross A. McVoy, Esquire Madigan, Parker, Gatlin,

Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302

Alfred J. Malefatto, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Robert R. Phifer 1006 Seaway Drive

Fort Pierce, Florida 33449

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300

Tallahassee, Florida 32303

Docket for Case No: 82-003029

Orders for Case No: 82-003029