STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT AND EVELYN OLTMAN, ) LEONARD AND PAULINE MCNUTT, ) AND RONALD HURLEY, )

)

Petitioners, )

)

vs. ) CASE NO. 85-0622

)

1. FORMS, INC., and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This matter came on for hearing in Palatka, Florida on June 18, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter.

   
   

   APPEARANCES

   
   

   For Petitioners: Albert and Evelyn Oltman, pro se

   Post Office Box 540 Welaka, Florida 32093

   
   

   For Respondents: Alan B. Fields, Jr., Esq.

   D.S.I. Forms, Inc. Post Office Drawer F Palatka, Florida 32078

   
   

   Ross S. Burnaman, Esq.

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32301

   
   

   This matter arose on the application of D.S.I. Forms, Inc. to extend its boat dock on the St. Johns River. Petitioners oppose the intended grant of the permit by the Department of Environmental Regulation (DER) which would authorize such extension. Petitioner submitted a post hearing letter which is

   essentially a legal brief on the perceived issues. No proposed findings within the meaning of Subsection 120.57(1)(b)4, Florida Statutes (F.S.) were filed.

   FINDINGS OF FACT

   
   

   1. D.S.I. Forms, Inc. is a for-profit corporation with facilities in Palatka, Florida. It is the owner of a river- front house known as the "DSI Lodge," which is the location of the boat dock at issue here. The DSI Lodge has an existing boat dock similar to those of other waterfront homes in the area along this section of St. Johns River, which is a Class III Florida Water.1

      
      

   2. The area is predominantly single family residential, but is not so restricted by zoning ordinance. The DSI Lodge is used as a weekend and holiday retreat by the owner of D.S.I. Forms, Inc., who resides in Atlanta, Georgia, and by his business and personal guests. Although the DSI Lodge has a business character, there is no charge to guests for using lodge or dock facilities.

      
      

   3. The proposed DSI dock extension would add a two-boat covered slip measuring 20 by 22 feet to the end of the existing dock. Since DSI only seeks mooring facilities for one additional boat,2 it has agreed with the Department of Natural Resources (DNR) to remove its inside boat slip. Although DNR was not a party to this proceeding, the Applicant's stated intent to remove a portion of the existing dock should be reflected in any permit issued by DER.

      
      

   4. The existing dock is approximately 700 square feet in surface area. With the application as now framed, the total surface area would exceed 1,100 square feet. However, with removal of the inside slip, the proposed dock area would apparently increase to less than 1,000 square feet, and thus may be exempt from DER permitting altogether.3

   5. Petitioners presented a series of grievances concerning use of the DSI Lodge by inconsiderate guests. These complaints included discharging a rifle and fireworks, high speed operation of power boats adjacent to the river's edge (bulkhead) and congestion of boating activity resulting from numerous guests using the DSI facilities during holiday periods.

      
      

   6. The careless or congested boating activity may affect the quality of life for DSI Lodge neighbors and endanger wildlife such as manatee which sometimes inhabit these waters. However, it was not shown that the proposed dock extension would affect these environmental considerations since D.S.I. Forms, Inc. already owns and operates the boat which would be

      accommodated by the additional slip (see footnote 2 above). Further, the testimony of the DER field representative established that the presence of the extended dock, as well as its construction, would not degrade water quality.

      
      

      CONCLUSIONS OF LAW

      
      

   7. Section 403.906, Chapter 84- 79, Laws of Florida (1984), sets forth the applicable criteria for the grant or denial of this permit application, and provides in part:

      
      

      1. No permit shall be issued . . .unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. . . .

         
         

      2. No permit shall be issued unless

         the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for projects which significantly degrade or are within an Outstanding Florida Water, as provided by department rule, the applicant shall provide reasonable assurance that the project will be clearly in the public interest. In determining whether a project is not contrary to the public interest, or clearly in the public interest, the department shall consider and balance the following criteria:

         
         

         1. Whether the project will adversely affect the public health, safety, or welfare or property of others;

            
            

         2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

            
            

         3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

            
            

         4. Whether the project will adversely affect the fishing or recreational values or

            marine productivity in the vicinity of the project:

            
            

         5. Whether the project will be of a temporary or permanent nature:

            
            

         6. Whether the project will adversely affect or enhance significant historical and archaeological resources under the provisions of s. 267.061 and

            
            

         7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

         
         

   8. Water quality standards4 will be virtually unaffected by the proposed dock extension. Thus, the applicant meets the requirement of Subsection (1), above.

      
      

   9. With respect to Subsection (2), above, the waters at issue here are not "Outstanding Florida Waters"5 nor will the "project . . . significantly degrade" Florida waters. Thus, the test is one of interest balancing.

      
      

   10. The project at issue would not by itself violate any of the above criteria. A significant increase in boating activity, if it resulted from the project, would have an adverse impact on the elements sought to be protected by these criteria. However, boating activity originating from the DSI Lodge is not dependent on docking facilities. The additional boat to be moored is already in use at the DSI Lodge and is merely moored elsewhere at this time.

       
       

   11. D.S.I. Forms, Inc. has agreed to remove its inside boat-slip if the application is otherwise granted. It should be required to do so as a condition of any permit issued as a result of these proceedings. It was not conclusively demonstrated that the resulting dock area would be less than 1,000 square feet or that the facility is "non- commercial" and thus exempt from the permitting process.6 However, the limited size of the proposed facility indicates that it is of minimal concern from a regulatory standpoint.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that the Department of Environmental Regulation enter a final order issuing the proposed permit to D.S.I. Forms, Inc. with an added condition requiring removal of the existing inside boat-slip.

DONE and ENTERED this 26th day of July, 1985 in Tallahassee, Florida.

R. T. CARPENTER, 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 26th day of July, 1985.

ENDNOTES

1/ See Rule 17- 3.081, Florida Administrative Code (F.A.C.). 2/ This additional boat is owned by D.S.I. Forms, Inc.

and is now moored at a commercial marina. 3/ See Rule 17-4.04(9)(c), F.A.C.

4/ See Section 17-3.121, F.A.C. which sets forth the contaminant levels for Class III Waters.

5/ See Section 17-3.041, F.A.C.4

6/ Rule 17- 4.04, F.A.C. provides in part:

The following sources are exempted from the permit requirements of this Chapter.

* * *

(9) Construction dredging or filling activities associated with the following types of projects:

(c) The installation and repair of mooring pilings and dolphins associated with private docking facilities and the installation of private docks of five hundred (500) square feet or less of over- water surface area, or one thousand (1000) square feet or less of over- water surface area for docks which are not located in Outstanding Florida Waters and which are used for recreational, non- commercia1 activities, constructed on pilings so as not to involve filling or dredging other than that necessary to install the pilings.

COPIES FURNISHED:

Albert and Evelyn Oltman Post Office Box 540 Welaka, Florida 32093

Ronald D. Hurley Post Office Box 729

Welaka, Florida 32093

Leonard and Pauline McNutt Post Office Box 218 Welaka, Florida 32093

Alan B. Fields, Jr., Esq. Post Office Drawer F Palatka, Florida 32078

Ross S. Burnaman, Esq. Department of Environmental

Regulation

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: 85-000622

Orders for Case No: 85-000622