Judges: K. N. AYERS
Agency: Department of Environmental Protection
Latest Update: Nov. 25, 1986
Summary: Where twenty-five owners each hold an undivided 1/25ths interest in a dock, each is entitled to notice of petition and must be joined as parties. Petition dismissed.
85-3558STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAPLEY ARMSTRONG, )
)
Petitioner, )
)
vs. ) CASE NO. 85-3558
) STATE OF FLORIDA, DEPARTMENT ) OF NATURAL RESOURCES, )
)
Respondent, )
)
and )
)
JACK B. HARDIN, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, The Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above-styled case on November 13, 1986, at Tallahassee, Florida.
APPEARANCES
For Petitioner: Gerald Sage, Esquire
11963 North Florida Avenue Suite A
Tampa, Florida 33612
For Respondent: Charles R. McCoy, Esquire
Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd.
Majory Stoneman Douglas Bldg. Tallahassee, Florida 32303
For Intervenor: Jack B. Hardin, pro se
9117 Tiger Creek Trail Lake Wales, Florida 33853
By letter dated August 28, 1985 (Exhibit 4), the Department of Natural Resources (DNR) advised Rapley Armstrong that he had
constructed a dock into the waters of Lake-Walk-In The-Water on sovereignty lands which dock crosses the riparian lines of an adjacent lot and violates the setback rule as defined in Rule 16Q-21. By undated Petition for Formal Administrative Hearing, Armstrong requested a hearing to contest the Notice of Violation received from DNR. This petition showed Armstrong as Petitioner and DNR as Respondent, and this heading was continued; although, at the hearing, DNR was required to assume the burden of showing the dock to be in violation. Throughout this Recommended Order, Armstrong will be referred to as Petitioner and DNR as Respondent.
By letter dated October 25, 1985, Jack B. Hardin requested permission to intervene in these proceedings and this was granted by Order Granting Leave to Intervene entered November 6, 1985.
By another Order entered November 6, 1985, these proceedings were stayed at the request of Respondent to give the parties until December 1, 1985, to respond to the Notice of Assignment and Order issued October 21, 1985. Thereafter, this case was initially scheduled to be heard January 28, 1986. By motion for continuance dated January 7, 1986, Respondent requested these proceedings be continued as the parties were making a good faith effort to dissolve the dispute. On February 21, 1986, Respondent advised that negotiations were unsuccessful and requested these proceedings be rescheduled for hearing. By Amended Notice of Hearing dated March 7, 1986, the case was scheduled to be heard April 2, 1986. By Motion to Compel discovery and to continue the hearing dated March 17, 1986, the Respondent again requested a continuance and the hearing was rescheduled to be heard May 13, 1986. Petitioner requested this hearing date be continued due to an irreconcilable conflict and by Order dated May 9, 1986, the hearing was rescheduled to be heard May 13, 1986.
By Motion for Continuance dated May 27, 1986, Respondent, by and through its attorney, requested an indefinite stay in these proceedings, as all parties had apparently resolved the issues amicably. By Order dated January 2, 1986, these proceedings were continued sine die. By Request for Hearing dated October 6, 1986, Respondent requested this case be rescheduled for hearing subsequent to November 1, 1986, and Notice of Hearing dated October 10, 1986, rescheduling this case for a November 13, 1986 hearing was issued.
At the hearing, Respondent called three witnesses, including the Intervenor, the Petitioner testified in his own behalf, and seven exhibits were admitted into evidence. There is no real dispute regarding the facts here involved. Following the hearing, the parties waived the right to submit proposed Recommended Orders.
FINDINGS OF FACT
This dispute involves the construction of a dock from the uplands into Lake-Walk-In-The-Water near Lake Wales, Florida.
Lake-Walk-In-The-Water Heights Subdivison consists of a platted subdivision of lots along Lake-Walk-In-The-Water. In addition to those lots fronting on the lake, the plat includes 25 additional lots across the street (Chambers) which runs alongside the western edge of the lots fronting on the lake. To provide them access to the lake, those 25 lot owners received with the purchase of their lots an undivided l/25th ownership of Lot 35A, a 68.78 feet wide lot running from Chambers Street some 350 feet eastward to the lake.
Rapley Armstrong owns two of the 25 lots above referred to. He is the pastor at Castle Heights Baptist Church in Tampa where his permanent residence is located. He vacations at his property near Lake-Walk-In-The-Water.
Jack Hardin is a retired airline pilot who lives on or near Lake-Walk-In-The-Water. Hardin owns Lot 35 which abuts Lot 35A to the south, and, with his wife, one of the 25 lots on Chambers Street. The residence on Lot 35 is occupied by a tenant of Hardin's.
Several years ago Hardin constructed a small dock near the intersection of Lots 35 and 35A which provided access to the lake. He subsequently removed this dock.
Several of the lot owners of the 25 lots on the west side of Chambers Street conceived the idea of erecting a dock from Lot 35A into the lake to provide them access and ,elected Armstrong treasurer to collect money for the materials needed. Armstrong allowed the cost of the materials to be charged to his credit card and, as a community project, the dock was built in one day by some 8 or 10 men including Hardin's tenant of Lot 35.
After the dock was completed, Armstrong started to call the owners of the 25 lots to obtain their contribution of $110 each for the cost of the materials used to construct the dock. His first call was to Hardin who became very angry because he had not been consulted before the dock was built. This conversation was sufficiently upsetting to Armstrong that he did not call any of the other lot owners.
By letter dated July 30, 1985 (Exhibit 1), Hardin complained to the Department of Natural Resources that Armstrong had constructed a dock which crossed into the riparian line of
Lot 35 and sent with his letter photographs of the dock (Exhibit
2) and a plat (Exhibit 3) with the dock drawn in free-hand.
Following a preliminary investigation by J. Gordon Roberts, an investigator with DNR, the Department sent Exhibit 4 to Armstrong advising him that the dock encroached into the riparian line of Lot 35 and directing him to remove the dock. Armstrong then filed the Petition which initiated these proceedings.
In January 1985, Respondent conducted a survey to locate the dock with respect to the riparian rights line of Lot
This survey established the riparian rights line between Lots 35 and 35A and showed the dock to have been constructed within the riparian rights line of Lot 35A and within 25 feet of that line. This places the dock within the setback zone established by Rule 16Q-21.04(3)(d), Florida Administrative code.
While the survey was being conducted, DNR personnel met with Hardin and the owners of the lots who erected the dock to try and work out a compromise. During these meetings, Armstrong agreed to allow Hardin to remove the dock if he so desired but contended he did not own the dock or the land from which the dock started towards the water. Armstrong, with the other owners, agreed to remove the T-portion of the dock that extended into the riparian rights line of Lot 35 and to place a railing along the south side of the dock to deter people from encroaching on Lot 35 from the dock.
While the owners were performing this work, Hardin came to the site and demanded they cease doing any work on the dock as the dock had to be removed and relocated. At this juncture those owners not parties to this action apparently decided they would no longer cooperate with Hardin and refused to grant permission for Hardin or anyone else to remove their property.
Absent the consent of the other owners, Petitioner is without authority to remove this dock.
Lake-Walk-In-The-Water is a large shallow lake some 7 miles by 8 miles in area and is a meandered lake.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Petitioner contends that Respondent does not have jurisdiction to require him to remove the dock because: (a) Lake-walk-In-The-water is not a navigable water of the State so as to confer ownership of the bottom on Respondent; and (2) the
other 24 lot owners are indispensable parties to these proceedings as the dock is on their land and/or is owned by them.
With respect to the first point, Petitioner's contention is without merit. In Florida, meandering is evidence of navigability which creates a rebuttable presumption thereof. Odom vs. Deltona Corp., 341 So. 2d 977, 998-9 (Fla. 1976). No evidence was presented by Petitioner to rebut this presumption.
Petitioner's second part has merit. Petitioner is not
,the owner of the dock and has no authority to act for or on behalf of the other owners. These other owners are indispensable parties to these proceedings and due process requires they be given notice of the charges and an opportunity to appear and defend against those charges.
The charging document in this case (Exhibit 4) alleges that "this structure also crosses the riparian line of Lot 35 and violates the setback rule as defined in Rule 16Q-21." The evidence fails to establish that the dock crosses the riparian line of Lot 35. In fact, the evidence establishes that no portion of this dock crosses the riparian rights line of Lot 35. This evidence, however, clearly shows that all of the dock is within 25 feet of the riparian rights line of Lot 35A.
Riparian rights exist as natural and inherent incidents of the ownership of the abutting land. Among those riparian rights, and the only one here involved, is the right of the owner of land bordering on navigable waters to an unobstructed view of or over such waters. 78 Am.Jur.2d, Section 265. The dock here in question is a low dock with no boathouse or other superstructure to interfere with or obstruct the view of the adjacent property owner. Accordingly this dock does not interfere with the riparian rights of adjacent land owners.
Rule 16Q-21.04(3)(d), Florida Administrative Code, provides:
"All structures and other activities must be set back a minimum of 25 feet from the applicant's riparian rights line. Margina1 docks may be set back only 10 feet. There shall be no exceptions to the setbacks unless the applicant's shoreline frontage is less than 65 feet or a sworn affidavit of no objection is obtained from the affected adjacent upland riparian owner, or the proposed structure is a subaqueous utility line "
Since Lot 35A has a shoreline frontage of more than 65 feet, this exception to the setback rule is not available and the ill will so far developed between Hardin and the other owners of Lot 35A and the offending dock is unlikely to result in a sworn affidavit of no objection from Hardin.
However, these other owners are entitled to notice of the alleged illegality of the dock and an opportunity to defend their rights to this dock. Since they were not joined as parties and Petitioner Armstrong has no mandate or authority to act in their behalf, these proceedings must be dismissed for failure to join necessary parties. It is
RECOMMENDED that a Final Order be issued dismissing the Petition filed by Rapley Armstrong.
ENTERED this 25th day of November, 1986, in Tallahassee, Florida.
K. N. AYERS 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 25th day of November 1986.
COPIES FURNISHED:
Charles R. McCoy, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd.
Majory Stoneman Douglas Bldg. Tallahassee, FL 32303
Gerald Sage, Esquire
11963 North Florida Avenue Suite A
Tampa, FL 33612
Jack B. Hardin
9117 Tiger Creek Trail
Lake Wales, FL 33853
Dr. Elton Gissendanner Executive Director
Department of Natural Resources Executive Suite
3900 Commonwealth Blvd.
Tallahassee, FL 32303
Docket for Case No: 85-003558
Orders for Case No: 85-003558
| Issue Date |
Document |
Summary |
|
Nov. 25, 1986 |
Recommended Order
|
Where twenty-five owners each hold an undivided 1/25ths interest in a dock, each is entitled to notice of petition and must be joined as parties. Petition dismissed.
|
