STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH RESORT PROPERTIES,LTD )

)

Petitioner, )

)

vs. ) CASE NO. 82-3244

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. remor, hearing officer with the Division of Administrative Hearings, on June 23, 1983 in Tallahassee, Florida. The issue for determination at the hearing was whether petitioner owns sufficient shoreline to qualify for consent of use of sovereignty submerged land as a form of authorization for a proposed 9,180 square foot docking facility extending into Lake Worth.

APPEARANCES

For Petitioner: Robert A. Routa

Roberts, Egan and Routa, P.A.

217 South Adams Street Post Office Box 1386

Tallahassee, Florida 32302

For Respondent: John W. Williams

Assistant Department Attorney 3900 Commonwealth Boulevard

Tallahassee, Florida 32303 FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Petitioner is the owner of a parcel of land which extends into Lake Worth in the form of a rectangular peninsula. The peninsula is filled formerly sovereignty submerged land was conveyed by the Trustees of the Internal Improvement Fund to the petitioner's predecessor in title. The width of the property conveyed represented the width or linear extent of the upland property. This width consists of approximately 100 linear feet. The length of the sovereignty lands conveyed extended from the upland property to the existing bulkhead line in Lake Worth. The perimeter of the entire peninsula at the land/water interface contains approximately 1,198 linear feet.

   
   

2. At or about the same time of the sovereignty land conveyance to petitioner's predecessor, similar conveyances were made by the Trustees of sovereignty submerged lands lying to the north and south of petitioner's

   property. While it was the stated intent of the adjacent property owners to fill the areas conveyed, only the petitioner's parcel has been filled. Thus, the parcel in question is presently surrounded by water to the north, south and west. The submerged lands to the north and the south are privately owned, and the submerged lands to the west are sovereign and vested in the State.

   
   

3. Constructed upon petitioner's upland property is a two-story apartment building which is being remodeled into condominium units. Petitioner desires to construct a docking facility containing fourteen berthing spaces which would extend into Lake Worth off the western boundary of its property. The facility is to be used by the condominium unit owners on a first-come first-serve basis at no additional charge for the use of the marina slips. The proposed fourteen slip docking facility would preempt from use by the public approximately 9,180 square feet of sovereignty submerged land.

   
   

4. Petitioner applied to the Department of Natural Resources for authorization to use the sovereignty submerged land adjacent to its upland for the purpose of constructing its proposed docking facility. The type of authorization requested was a letter of consent which requires no fee payment.

   
   

5. Respondent advised the petitioner that its proposed project did not qualify for a letter of consent because of insufficient riparian footage owned by the applicant. Instead, petitioner was informed that the correct form of authorization for the project would be a submerged land lease, which requires the payment of an annual fee.

   
   

   CONCLUSIONS OF LAW

   
   

6. The issue in this proceeding is whether petitioner is entitled to a letter of consent from the Department of Natural Resources (DNR) authorizing it to use without charge sovereignty submerged land for its proposed docking facility. More specifically, the issue is whether the petitioner owns a sufficient amount of "shoreline" to qualify for consent of use as a form of authorization for the proposed facility.

   
   

7. The rules of the DNR prescribe several forms of authorization for the private use of sovereignty submerged land. The types of authorization pertinent to this proceeding are "consent of use" and "lease." A "consent of use" is authorized for

   
   

   "docks, access channels, boat ramps, or other activities which preempt no more than 1,000 square feet of sovereignty land area for each 100 linear feet of

   shoreline in the applicant's ownership..." Rule 16Q-21,05(1)(a)2, Florida Administra- tive Code (1982 Supp).

   
   

   A "lease" is required for docks and other activities which are larger than those which can be approved under "consent of use." Rule 16Q-21.05(1)(b)1, Florida Administrative Code. As noted above, a lease requires the payment of a fee, while authorization pursuant to a consent of use does not require a fee payment.

   
   

8. It is the petitioner's position in this proceeding that it owns some 1,198 linear feet of "shoreline," a figure derived from counting the footage along the land/water interface of all three sides of its peninsula. According to petitioner, it is thus entitled to build a structure preempting 11,980 square

   feet of submerged land and its proposed facility totalling 9,180 square feet is therefore entitled to "consent of use" authorization.

   
   

9. Respondent contends that the creation of additional water boundaries by the placement of fill does not create a new "shoreline" for purposes of Chapter 16Q-21, Florida Administrative Code. Instead, it is urged that the 100 foot westerly shoreline as established prior to the submerged land conveyance to petitioner should be considered the "shoreline" for purposes of petitioner's application. Under this interpretation, petitioner would only be entitled to construct a 1,000 square foot facility pursuant to a consent of use" authorization. Any larger project would require a submerged land lease from the DNR.

   
   

10. A reading of Chapter 16Q-21, Florida Administrative Code, which governs the management of sovereignty submerged lands, leads to the conclusion that respondent's position in this proceeding is correct. The purpose and intent of statutes and regulations regarding the private use of sovereignty submerged lands is to not only protect such lands, but to insure the maximum benefit and use of such lands for all Florida citizens and to insure that activities which exclude traditional public uses provide just compensation for such a privilege. Rule 16Q-21.01, Florida Administrative Code. For this reason, equitable compensation is required for authorizations of use that preempt general public use beyond the threshold of 1,000 square feet of sovereignty land area for each 100 linear feet of shoreline owned by the applicant.

    
    

11. What is being governed or regulated is the use of sovereignty land-- not the use of privately owned land. The only thing that the DNR can lease or give consent to use is land remaining in its jurisdiction. Here, the only lands remaining in its jurisdiction are those submerged lands remaining waterward of the bulkhead line. DNR is only concerned with publicly owned submerged lands. Use of the privately owned submerged lands lying to the immediate north and south of petitioner's parcel would require consent of the adjacent owners, not the DNR. Determinations regarding consents of use, leases and lease fees are all based upon the amounts of sovereignty land preempted by the proposed project. A "preempted area" is defined as the area of sovereignty lands from which the traditional uses have been or would be excluded to any extent by an activity. Rule 16Q-21.03(25), Florida Administrative Code. Given these considerations, it is obvious that the "shoreline" referred to in the threshold determination (i.e., 1,000 square feet for each 100 linear feet of shoreline) pertains to the "shoreline" which separates the land of the applicant for authorization of use from the State-owned submerged land, or the sovereignty land as defined in Rule 16Q-21.03(35), Florida Administrative Code. To include within the definition of "shoreline" the lands bordering upon the land of a private owner would not comport with the meaning, intent or purposes of the laws governing the management of sovereignty submerged lands.

    
    

12. The petitioner owns only approximately 100 linear feet of shoreline bordering upon the State-owned submerged land lying to the west. Therefore, a project involving 9,180 square feet of docks and marina slips is not entitled to the consent of use form of approval under Rule 16Q-21.05(1)(a)2, Florida Administrative Code.

    
    

13. The proposed findings of fact and conclusions of law submitted by the parties have been fully considered. To the extent that the findings of fact proposed by the parties are not included in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced

at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for consent of use of sovereignty submerged land for a 9,180 square foot docking facility in Lake Worth be DENIED.

Respectfully submitted and entered this 31st day of August, 1983 in Tallahassee, Florida.

DIANE D. TREMOR, 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 31st day of August, 1983.

COPIES FURNISHED:

Robert A. Routa, Esquire Roberts, Egan & Routa, P.A. Post Office Box 1386 Tallahassee, Florida 32302

John W. Williams, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Dr. Elton J. Gissendanner, Executive Director Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Docket for Case No: 82-003244

Orders for Case No: 82-003244