STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIVERWALK CONDOMINIUM )

ASSOCIATION, INC., )

)

Petitioner, )

)

v. ) CASE NO. 85-0721

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and THE YACHTING ) ARCADE, )

)

Respondents )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 9, 1985 in Vero Beach, Florida.

APPEARANCES

For Petitioner: Harold C. Wiggers

4601 North A-1-A, Apartment 204 Vero Beach, Florida 32963

For Respondent: B. J. Owens, Esquire and

Daria L. Burgess Certified Legal Intern

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent/ Paul Heide

Applicant: 541 Beachland Boulevard

Vero Beach, Florida 32960 BACKGROUND

This matter began when respondent, Department of Environmental Regulation (DER), issued its notice of intended

agency action on February 14, 1985 wherein it proposed to issue a permit to respondent/applicant, The Yachting Arcade, generally authorizing the construction of a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline of Bethel Creek in Indian River County, Florida. The notice also contained twelve specific conditions made a part of the proposed permit.

On February 27, 1985, the original petitioners in this cause, Robert J. Greiner, W. B. MacWhirter and John G. Lundmark, all alleging to have waterfront homes or apartments within 500 feet of the proposed activity, filed a petition objecting to the proposed agency action. The matter was forwarded by respondent to the Division of Administrative Hearings on March 6, 1985 with a request that a hearing officer be assigned to conduct a formal hearing.

Thereafter, DER filed a motion to dismiss the petition on the ground the same did not conform with Rule 28-5.205, Florida Administrative Code. The motion was granted by the undersigned on April 1, 1985 without prejudice to petitioners filing an amended petition complying with the rule. A second pleading was filed by petitioners in which they alleged that (1) the proposed activity would injure bird and aquatic life, (2) the manatees would be endangered by the pollution and boat activity, (3) shoreline vegetation would be destroyed, (4) the project would have an adverse effect on the adjoining public park, (5) wakes from the boats using the facility would damage seawalls (6) no means of enforcing the conditions exists, (7) the facility would attract snakes and rats, and (8) the project would cause a green algae bloom with no through wash of tidal water.

By notice of hearing dated April 24, 1985, the final hearing was scheduled for July 9, 1985 in Vero Beach, Florida. Petitioners' request to continue the matter until January, 1986, on the ground many area residents were on summer vacation and would not return until the winter months was denied by order dated June 1, 1985.

At the outset of the hearing, and without objection by the parties, Riverwalk Condominium Association, Inc. was substituted as petitioner in this cause, and its assistant-treasurer, Dr.

Harold C. Wiggers, qualified as a representative under Rule 221- 6.08, Florida Administrative Code. Mr. Paul Heide, president and owner of the applicant corporation, was qualified to represent applicant.

At final hearing petitioner presented the testimony of Harold C. Wiggers, Frank Wakefield, Joseph Dimarzo, and Norman Badenhop and offered petitioner's exhibit 1 which was received in evidence. Respondent presented the testimony of Barbara Bess, its supervisor of dredge and fill permit section in Orlando, and offered respondent's exhibits 1-7. All were received in evidence. Applicant presented the testimony of its president and owner, Paul Heide. Additionally, testimony was heard from the following members of the general public: William Fraiesell, John A. Acor, Arthur DeGrazia, Lomax Gythmay, Marvin Klein and Paul Darcy.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on July 22 and 24, 1985, respectively. None were filed by applicant. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

The issue herein is whether The Yachting Arcade should be issued a permit as reflected in respondent's letter of intent issued on February 14, 1985.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent/applicant, The Yachting Arcade (applicant), initiated this matter when it filed an amended application with respondent, Department of Environmental Regulation (DER), on April 27, 1984, seeking a permit authorizing the construction of a docking facility on the eastern shore of Bethel Creek in the City of Vero Beach, Florida.1 Specifically, applicant wished to construct a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline. The access docks would vary in size from thirteen to sixteen feet in length and from four to ten feet in width. The dock will be situated in front of a two-story commercial structure and parking lot on 1.14 acres owned by applicant which lies between Highway A-1-A and Bethel Creek. That structure will house a restaurant and other retail establishments. A city permit for the dock was previously issued on November 17, 1983, and remains in effect at this time. According to the parties, permit approval is also required from the Department of Natural

   Resources (DNR). However, DNR is awaiting action by DER before issuing or denying a permit.

   
   

2. Bethel Creek is a relatively small navigable U-shaped dead-end canal connected to the Intracoastal Waterway in the Indian River in Indian River County, Florida. It is classified as a Class III water of the State. Because of continued development along the Creek, and poor flushing characteristics, the water has gradually deteriorated over the years. Most of its shoreline is bulkheaded in the vicinity of the proposed project, and it has a depth of around fifteen to twenty feet. The width of the Creek at the site of the project ranges from

   120 to 195 feet and represents the most narrow part of the canal. The project is approximately one to two-tenths of a mile from the dead-end of the canal, and less than a half a mile from the opening at Indian River. In addition to applicant's commercial development, there are a number of single family residences on the Creek, a large condominium known as the Riverwalk Condominium, and eight townhouses at the deadend of the Creek. Other development may also exist but was not disclosed at hearing. There are a number of existing private docks with boats on the Creek including a four-dock marina at the end of the canal. Petitioner, Riverwalk Condominium Association, Inc., is an association of condominium owners who reside within 500 feet of the proposed activity.

   
   

3. Under the proposal, applicant intends to limit the docking facilities to the private use of The Yachting Arcade." There will be no fuel or maintenance service for boats, and sewage disposal facilities and live-aboards will be prohibited. Shoreline improvement is to be accomplished by excavating an area landward of the dock, backfilling the area with sand and rubble, placing filter fabric over the backfill, laying sand and gravel over the fabric and revegetating the excavated/backfilled area with cordgrass and red mangroves. The theoretical capacity of the docking facility will depend on the size of the boats, but it will allow docking by up to twelve to fifteen boats of the fifty foot category at one time, or up to thirty-six smaller boats simultaneously. At the insistence of DER, the boats will be moored parallel to the Creek in an effort to not impede navigation.

   
   

4. After receiving the original and amended applications, DER personnel made three on-site inspections of the property. These were conducted in January and May, 1984 and May,|1985. Although no water quality testing was performed, the Department found the Creek to be a viable habitat for various game and

   nongame species, including mullet, sheepshead, tarpon, snapper, manatees, great blue herons and egrets. The property along the shoreline was comprised of Australian pines, pepper trees and railroad vines until they were removed in June, 1985 by applicant. There has been severe erosion along the water front but this will diminish through revegetation and excavation of the bank. The construction of the dock will create only minor, short-term turbidity. The quality of the water within the Creek is now poor, but a vegetated shoreline, including mangroves, will assist in cleansing the water and improving its quality.

   Therefore, applicant has given reasonable assurances that the proposed project will not violate established water quality standards, or constitute a threat to marine life, wildlife or natural resources.

   
   

5. According to agency rule an applicant must demonstrate that "the proposed project will not create a navigational hazard, or a serious impediment to navigation. . ." in the affected waters. Even though the dock will be built at the most narrow part of the creek, and may have as many as thirty-six boats moored at any one time, the agency expert concluded that no impediment to navigation would occur.2 However, testimony by residents on the Creek indicate that the actual navigable part of the stream is much smaller, and that boats are frequently "beached" because of the shallow nature of the waters. Since applicant will simultaneously allow as many as fifteen boats in the fifty-foot category, or thirty-six of a smaller variety, to traverse the Creek, there will be a serious impediment to navigation on the narrow navigable part of the Creek. Moreover, it will create a navigational hazard. A restriction on the number of boats to use applicant's dock at one time is not practical, and even DER omitted such a condition because of its inability to enforce this provision. Therefore, the criteria for issuance of a permit have not been met.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Rule 17-4.28(3), Florida Administrative Code, provides in relevant part:

   
   

   (3) The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall

   affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

   
   

   Rule 17-4.29(6), Florida Administrative Code, provides as follows:

   
   

   1. The Department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

      
      

      1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and

         
         

      2. 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. (Emphasis added)

   
   

   The above rules require that the applicant provide reasonable assurances that the proposed activity will not violate water quality standards, and that the activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, or create a navigational hazard or a serious impediment to navigation. The rules merely implement Sections 253.123, 253.124 and 403.087, Florida Statutes, which impose the same requirements.

8. The law is well settled that in an environmental permitting case, an applicant carries the burden of "reasonable assurances" as to all matters raised by petitioner in its protest. Fla. Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 789 (Fla. 1st DCA 1981). As is relevant here, one area of controversy is the alleged effect of the project on the navigation of the Creek. Having presented a prima facie case that reasonable assurances had been given as to this controverted matter, the burden then shifts to petitioner "to carry the burden of proof as to the controverted facts asserted." Id. at 789. In the case at bar, petitioner through uncontroverted testimony established that the navigable portion of the stream is quite narrow, and that boats are frequently "beached" in the shallow waters. This being so, it is concluded that the addition of the dock and as many as thirty-six boats on the narrow stream at one time will create a navigational hazard and impede navigation on the Creek. Since DER concedes that a restriction on the number of boats using the dock at any time is unenforceable, that alternative is impractical. Therefore, applicant has failed to provide reasonable assurances that no adverse effect on navigation will occur, and the application must accordingly be denied.

   
   

9. Respondent's motion to strike the affidavit filed by petitioner after the close of the hearing is GRANTED.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the application of The Yachting Arcade for a permit to construct a shoreline dock on Bethel Creek in Indian River County, Florida be DENIED.

DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985.

ENDNOTES

1/ The original application was filed on an earlier date. However, applicant agreed to certain DER suggested modifications which resulted in the above amended application.

2/ The agency witness did not attempt to measure the size of the channel in the Creek where its depth reaches fifteen to twenty feet. Therefore, the uncontradicted testimony of lay witnesses is accepted as being probative of this question. Cf. Kelly v. Kinsey, 362 So. 2d 402, 404 (Fla. 1st DCA 1978)(holding that the opinion of an expert witness cannot be used to form the basis for a conclusion in the absence of evidence.)

COPIES FURNISHED:

George H. Moss, Esq.

255 Live Oak Road

Vero Beach, Florida 32963

B. J. Owens, Esq.

Twin Towers Office Bldg. 2600 Blairstone Road

Tallahassee, Florida 32301

Mr. Paul Heide

541 Beachland Blvd.

Vero Beach, Florida 32960

Mr. James Byrne

4601 North A-1-A, Apt. 205

Vero Beach, Florida 32963

Docket for Case No: 85-000721

Orders for Case No: 85-000721