STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES E. WILLIAMS and )
CHARLES W. CAUSEY, )
)
Petitioners, )
)
vs. ) CASE NOS. 86-1095
) 86-1096
CHARLES R. MOELLER, and JULIA, ) MOELLER, and STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on July 8, 1986, in Key Largo, Florida.
APPEARANCES
For Petitioners, James T. Hendrick, Esquire James E. Williams & Post Office Box 1117 Charles W. Causey: Key West, Florida 33041
For Respondents, James W. Bowling, Esquire Charles R. Moeller Vernis & Bowling, P.A. and Julia Moeler: 82685 Overseas Highway
Post Office Box 611 Islamorada, Florida 33036
For Respondent, Douglas H. MacLaughlin, Esquire Department of Earl R. Hahn, Certified Legal Intern Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301 PRELIMINARY STATEMENT
At issue in this proceeding is whether Respondent, Department of Environmental Regulation (Department), should enter into a Consent Order, permitting Respondents, Charles R. Moeller and Julia Moeller (Applicants), to construct an 8-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida.
At final hearing, Applicants called Julia Moeller as a witness, and Applicants' Exhibits 1-15, 16 A-G, and 17 A-C, were received into evidence. The Department called David Bishof, accepted as an expert in water quality standards, dredge and fill application appraisal, biology and ecology, as a
witness, but offered no exhibits. Petitioners called Sharon Tobin, Charles W. Causey, Jean Williams and David Bishof, as witnesses. Petitioners Exhibits 1 and 3 were received into evidence.
The parties were granted 10 days from the date of final hearing within which to file proposed findings of fact. The Applicants, Department, and Petitioners have submitted proposed findings of fact, and they have been reviewed and considered. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.
FINDINGS OF FACT
On March 10, 1986, Respondents, Charles R. Moeller and Julia Moeller (Applicants) entered into a consent order with Respondent, Department of Environmental Regulation (Department) pursuant to which their request for an "after the fact" permit to construct an 5-slip docking facility in Florida Bay, Upper Matecumbe Key, Monroe County, Florida, was granted. Petitioners, James E. Williams and Charles W. Causey (Protestants) filed a timely request for formal administrative review of the Department's action.
The Applicants are the owners of a 2.2 acre parcel of property situated on the northwestern side of central Upper Matecumbe Key, with approximately 280' frontage on Florida Bay. Since 1983, the Applicants have sought authorization to construct a multi-family dock facility for use in conjunction with their plans to develop the uplands as a condominium community.
Protestants, James E. Williams and Charles W. Causey, are neighbors of the Applicants. Mr. Williams' property abuts the north boundary of Applicants' property, and extends northerly with 230' frontage on Florida Bay. Mr. Causey's property abuts the north boundary of Mr. Williams' land, and extends northerly with 230' frontage on Florida Bay. Protestants have used, and use, the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating and other recreational pursuits. Protestants have standing to maintain this action.
Background
On February 28, 1983, Applicants filed their first request with the Department and the Army Corps of Engineers (Corps) for authorization to construct a docking facility to serve their proposed uplands development. That application sought authorization to construct a 10-slip docking facility, roughly "L" shaped, with a main pier extending into Florida Bay in a westerly direction and measuring 90' by 5', and the terminal section of the dock running southerly parallel to the shore line and measuring 100' by 5'. A row of 11 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 10 boat slips. As proposed, the facility was less than 1,000 square feet (sq. ft.), and exempt from the Department's permitting requirements. 1/ The Corps declined, however, to permit the facility as proposed. Noting that "a mixture of lush vegetation including mixed searasses and the hard corals" was located in the 2' to 3' MLW (mean low water) docking area, the Corps requested that the Applicants extend their pier further offshore to create dockage in waters of no less than -5' MLW depth.
Consistent with the Corps' request, Applicants modified their proposal by extending their pier 170' offshore. In all other respects, their proposal remained unchanged. On August 12, 1983, Applicants received Corps' approval for their modified docking facility; however, their extension of the pier increased
the docks' square footage to over 1,000 sq. ft., and subjected the project to the Department's permitting requirements. Accordingly, on October 7, 1983, Applicants filed a request with the Department for authorization to construct the dock facility approved by the Corps.
On November 7, 1984, the Department issued its intent to deny the requested permit predicated on its conclusion that, inter alia, degradation of local water quality was expected, as well as destruction of marine habitat and productivity to such an extent as to be contrary to the public interest. Although advised of their right to request formal administrative review of the Department's proposed action. /2 Applicants took no action. On December 13, 1984, the Department entered a final order, which adopted the reasons set forth in its notice of intent to deny, and denied the Applicants' requested permit.
The current application
On January 24, 1985, Applicants filed their request with the Department for authorization to construct the docking facility which is the subject matter of these proceedings. The application sought permission to construct an 8-slip 3/ docking facility of the same configuration as previously applied for, but with a main pier measuring 170' by 4', and a terminal section of 79' by 4'. A row of 9 mooring piles spaced 10' apart, 20' landward of the terminal section of the dock, formed the 8 boat slips. Applicants still proposed the same wood construction, and wood dock piles, as well as using the terminal section of the dock as a batterboard type breakwater by attaching heavy boards to the waterward side of the dock. 4/
As proposed, the dock facility was less than 1,000 sq. ft. and exempt from the Department's permitting requirements. Accordingly, on January 30, 1985, the Department issued the Applicants a copy of their application marked "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17-4.04(9)(c)," and apprised the Applicants of the need to secure approval from the Department of Natural Resources (DNR) for use of state-owned submerged lands.
Applicants promptly applied for DNR approval. On February 22, 1985, they received their first completeness summary, which was responded to on April 26, 1985, and on September 4, 1985, they received their second completeness summary, which was responded to on October 15, 1985. Finally, on December 5, 1985, Applicants received DNR approval conditioned upon Applicants execution and recording of a 10' conservation easement along the shoreward extent of Applicants' property to prevent the construction of any further dock facilities. Applicants duly executed and recorded the conservation easement.
On December 24, 1985, Applicants received their Monroe County building permit, and commenced construction on January 22, 1986. On January 23, 1986, Protestants contacted the Department's local environmental specialist, David Bishof, to complain of the construction. Mr. Bishof promptly telephoned the applicant, Mrs. Moeller, and advised her that the subject waters had been designated Outstanding Florida Waters (OFW), and that docks in excess of 500 sq. ft. were no longer exempt. 5/ At this point in time, only 6-8 pair of pilings had been set. Notwithstanding Mr. Bishof's advice, Applicants continued to construct the dock facility until all pilings were in place and 500 sq. ft. of the main pier area was decked.
On March 10, 1986, the Department and Applicants entered into the consent order which is the subject matter of these proceedings. That order granted the Applicants an "after the fact" permit to construct their 8-slip
docking facility, and granted substantially affected persons the right to petition for formal administrative review.
The project site
The waters of Florida Bay which abut the Applicants' 280' shoreline are classified as Class III waters and have, since May, 1985, been designated as Outstanding Florida Waters (OFW).
At Applicants' shoreline, erosion has cut an escarpment into the limestone such that the land's elevation drops abruptly from approximately 1' above MH to 2'-3' below MHW. Along much of the shoreline, erosion has undercut the limestone, forming small cliffs with an overhang of up to 5'. Very little vegetation exists on the exposed edge of the solution-faced limestone which forms the Applicants shoreline. What does exist consists of a few moderate to small red and black mangrove trees.
On the face of the shoreline escarpment a rich biota is found, which includes star arene, bearded periwinkles, and star coral. A narrow band of turtlegrass, with some Cuban shoalweed, is found at the base of the escarpment. At 50' from shore along the path of the proposed pier, 6/ the depth is 4+- MHW and the bottom consists of gently sloping bedrock, with a thin layer of sediment. Sparse vegetation, consisting of patches of turtlegrass and Bataphora are found at this point, along with a healthy fauna community consisting of numerous sponges and moderate sized colonies of star coral. At a distance of 100' along the proposed dock route, the bottom is covered by a thin layer of sediment which allows for a fairly constant growth of turtlegrass. Depths at this point are approximately 6' MHW. The turtlegrass bed continues to the end of the proposed dock and generally covers the entire proposed docking area. Depths in the proposed docking area range between 6'-7' MHW. Lobster frequent the area, together with fish common to the Florida Keys.
Areas of concern
The only permit application appraisal conducted by the Department was done in connection with the Applicants' October 7, 1983 permit request, and at a time when the waters of Florida Bay did not carry the OFW designation. At that time, the Department's environmental specialist, David Bishof, found that:
The proposed dock, along with the boats moored to it, when it is complete and in use, can be expected to shade approximately 2,000 ft 2 of seafloor. Much of the area that will be shaded, is covered by seagrass. A general decline in the quantity of seagrass in the shaded areas, can be expected to result from the project. With the loss of seagrass vegetation in the marina area, will also be the loss of the functions of habitat, sediment stabilization, primary production and pollution filtration.
Activities that can normally be expected to be associated with the use of the proposed dock will result in the discharge of toxic metals, hydrocarbons, organic debris, detergents and miscellaneous trash. With a
dock of the size being proposed, the above discharges are expected to be moderate in magnitude, but will probably not lower water quality below class III standards.
These findings were not disputed in this proceeding.
Although the dock area has been reduced from 100' to 79' in length, from 5' to 4' in width, and the number of boat slips from 10 to 8, the proposed dock, with the boats moored to it, can still be expected to shade approximately 1,900 sq. ft. of seafloor. 7/ This shading effect will result in the general decline in the quantity of seagrass in the dock area, and the consequent loss of habitat, sediment stabilization, primary production, and pollution filtration. Loss of seagrass in the dock area and surrounding area will be intensified by "prop dredging" and "scaring" due to seasonal tidal fluctuations of 1-3 feet.
As sited, the proposed docks are located in waters of 6'- 7' NHW depth, as opposed to the 5' NLW depth recommended by the Department and the Corps.
Other environmental consequences associated with the proposed facility include the discharge of hydrocarbons, toxic metals, detergents and organic debris into the surrounding waters. Mr. Bishof described these discharges as "moderate in magnitude" in his November, 1983 appraisal and concluded that they "will probably not lower water quality below class III standards." At hearing, with Florida Bay now designated OFW, Mr. Bishof again characterized the discharges as "moderate in magnitude" and opined that OFW standards would not be violated.
While Florida Bay is a vast body of water, which offers the opportunity for pollutant dilution, the waters in the area of the proposed facility are relatively shallow and lacking in strong currents; conditions- conducive to pollutant buildup. There has been no appraisal of the proposed project since November, 1983, 8/ and no substantive evidence that the hydrography of the waters in the area is adequate to control pollutant buildup. Consequently, Mr. Bishof's opinion cannot be credited. Under the circumstances, Applicants have failed to provide reasonable assurances that the proposed facility will not violate state water quality standards.
Public interest
In considering whether a project is clearly in the public interest, Section 403.918(2)(a), Florida Statutes establishes seven criteria which must be considered and balanced.
That subsection provides:
In determining whether a project is not contrary to the public interest, or is
clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The proposed project was not shown to promote any of the seven criteria. It would not, however, adversely affect the public health, safety or welfare or the property of others; adversely affect navigation or the flow of water or cause harmful erosion or shoaling; or adversely affect significant historical and archaeological resources. The relative condition of the vegetation and marine life in the area was shown to be good. Overall, the project was shown to be permanent and to have an adverse impact on the conservation of fish, habitat, marine productivity and recreational values. On balance, the proposed project is not clearly in the public interest, and no evidence was presented to mitigate its adverse impacts.
Cumulative impact
Section 403.919, Florida Statutes, mandates that the Department consider the cumulative impact of the proposed project in deciding whether to grant or deny a permit. Currently, there are no other projects existing, under construction, or for which permits or jurisdictional determinations have been sought, nor are there any projects under review, approved or vested, within one mile of the project site. Accordingly, cumulative impact is a neutral factor in the evaluation of the proposed project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.
Pertinent to this proceeding are the provisions of Section 403.918, Florida Statutes, and Rule 17-4.242, Florida Administrative Code. Section 403.918 provides:
A permit may not be issued . . .
unless the applicant provides the department with reasonable assurance that water quality standards will not be violated . . .
A permit may not be issued . . .
unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest.
However, for a project which . . . is within Outstanding Florida Water . . . the applicant
must provide reasonable assurance that the project will be clearly in the public interest.
Rule 17-4.242(1)(a), Florida Administrative Code, provides:
No Department permit . . . shall be issued for any stationary installation which . . . is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
2 . . .
* * *
* * *
b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity except on a temporary basis during construction for a period not to exceed thirty days . . .
The burden is upon the Applicants to provide reasonable assurances that water quality standards will not be violated and that their project is clearly in the public interest. Section 403.918, Florida Statutes; Rule 17- 4.242, Florida Administrative Code; and, Florida Department of Transportation v.
J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Applicants have failed to satisfy their ultimate burden of persuasion. 9/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order vacating the subject
consent order and denying the Applicants' request for an "after the fact" permit.
DONE and ENTERED this 6th day of August, 1986, in Tallahassee, Florida.
WILLIAM J. KENDRICK
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 6th day of August, 1986.
ENDNOTES
1/ Rule 17-4.04(9)(c) exempts from permitting: The installation and repairing 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 (1,000) square feet or less of over- water surface area for docks which are not located in Outstanding Florida Waters
. . .
2/ Applicants averred at hearing that they took no action in response to the Department's notice of intent to deny because their agent in the permit process, Key Cology, Inc., did not advise them of its receipt. Applicants concede, however, that Key Cology, Inc., was their agent, that it received notice, and that it failed to request a hearing. Accordingly, the finality of the Department's December 13, 1984 order is not subject to dispute.
3/ Applicants reduced the number of slips from 10 to 8 because they had reduced the size of their proposed condominium development to 8 detached residences.
4/ The boards will run in horizontal rows the length of the terminal dock at an elevation from slightly below mean sea level (MSL) to approximately 1.4' above mean high water (MHW).
5/ Effective May 8, 1985, all waters extending three leagues west of the Florida Keys were designated Outstanding Florida Waters. Rule 17-3.04, F.A.C.
6/ The main pier does not run perpendicular to the shoreline but, rather, at a slight southerly angle. Consequently, although 170' long, it is only 120' from the shoreline at its farthest point.
7/ This conclusion is reached based on the dock length and width (79' x 4') and eight boats of 20' length in the docking area. The existence of batterboards on the west side of the westerly light will be further restricted from penetrating the area under the dock.
8/ Mr. Bishof's site appraisal was in November, 1983, when the waters in question were classified as class III and did not carry the OFW designation. No formal site appraisal has been done since that time.
9/ In view of this conclusion, it is unnecessary to address Protestants' assertion that Applicants' permit must be denied under the doctrines of res judicata or estoppel by judgment. See Doheny v. Grove Isle, Ltd., 442 So.2d 966, reh. granted, 442 So.2d 977 (Fla. 1st DCA 1983).
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 86-1095 86-1096
Applicants' proposed findings of fact are addressed as follows: 1-6. Addressed in paragraphs 1-2, 4-11.
7. Addressed in paragraphs 12-21. 8-9. Addressed in paragraphs 3, 19. 10-11. Addressed in paragraphs 12-21.
Protestants' proposed findings of fact are addressed as follows:
1-5. Addressed in paragraphs 1-11.
6. Addressed in paragraph 19.
7-17. Addressed in paragraphs 3, 12-21.
The Department's proposed findings of fact are addressed as follows: 1-27. Addressed in paragraphs 1-11 and 15.
28-39. Addressed in paragraphs 15-21.
COPIES FURNISHED:
James T. Hendrick, Esquire Post Office Box 1117
Key West, Florida 33041
James W. Bowling, Esquire Vernis & Bowling, P.A.
82685 Overseas Highway Post Office Box 611 Islamorada, Florida 33036
Douglas H. MacLaughlin, Esquire
Earl R. Hahn, Certified Legal Intern Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Mary F. Smallwood, General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
JAMES E WILLIAMS and
CHARLES W. CAUSEY OGC FILE No. 86-0240 DOAH CASE Nos. 86-1095
Petitioners. 86-1096
v.
CHARLES R. MOELLER, JULIA MOELLER and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On August 6. 1986. a hearing officer from the Division of Administrative Hearings submitted to me his Recommended Order. It recommended that the State of Florida Department of Environmental Regulation ("Department") enter a Final Order vacating a consent order between the Department and Charles R. Moeller and Julia Moeller ("Moellers"). OGC File No. 86-0240. It is also recommended that the Department "deny the Applicants' (Moellers') request for an `after the fact' permit." A copy of that Recommended Order is attached as Exhibit A. On August
18. 1986, the Department timely filed an exception to the Recommended Order, attached as Exhibit B. On August 22, 1986, the Moellers timely filed exceptions to the Recommended Order, attached as Exhibit C. The Recommended Order thereafter came before me for final agency action.
BACKGROUND
On January 24, 1985, the Moellers filed a request with the Department for authorization to construct an eight-slip docking facility ("dock") that is the subject matter of these proceedings. The dock would be located on the Moellers' property in Islamorada, Monroe County, in the Florida Keys. The dock would have extended onto state waters classified at the time of the application as Class III pursuant to Florida Administrative Code Rule 17-3.081. As proposed at that time, the dock would contain 996 square feet of surface area. The Department had received a previous application from the Moellers for a 10-slip, 1350 foot dock in the same location. That application had been submitted on October 7, 1983. Construction of the new dock would have been exempt at the time of application from Department permitting requirements pursuant to Florida Administrative Code Rule 17-4.04(9)(c). The rule provided, among other things, that the following sources were exempt from Department permit requirements:
The installation and repair of marine 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. . . .
On January 30, 1985, the Department sent the Moellers a copy of their application, which was stamped "EXEMPT FROM DER D/F PERMITTING PER FAC RULE 17- 4.O4(9)(c)," and informed them of their need to secure approval from the Department of Natural Resources ("DNR") for use of state-owned submerged lands for their dock. Over the next several months, the Moellers acquired DNR and Monroe County approval. During this time, however, effective May 8, 1985, all
waters extending three leagues west of the Florida Keys were designated Outstanding Florida Waters pursuant to Florida Administrative Code Rule 17-
3.041. On January 22, 1986, the Moellers began construction of the dock. The next day James E Williams and Charles W. Causey ("Petitioners") contacted the Department to complain of the construction. The Department thereupon informed the Moellers that docks in excess of 500 square feet were no longer exempt from permitting requirements. The Moellers had positioned the pilings in accordance with the configuration in the plans for the entire dock, but stopped construction of the decking on the dock at 500 square feet.
On March 10, 1986, the Department and the Moellers entered into the above- referenced consent order. The order required the Moellers to pay $150.00 in settlement for the violation of construction of an unpermitted dock and authorized the Moellers to complete construction of a 996 square foot dock in a manner consistent with the January 24, 1985, permit application, which was attached by reference. The consent order also required the Moellers to publish notice of agency action notifying any person whose substantial interests would be affected by the consent order of the right to petition for an administrative proceeding in accordance with Section 120.57, Florida Statutes, and the predecessor to Florida Administrative Code Chapter 17-103. Petitioners timely filed a petition in opposition to the consent order, and the matter was referred to the Division of Administrative Hearings for an administrative hearing pursuant to Section 120.57(1), Florida Statutes.
RULING ON EXCEPTIONS RESPONSE TO MOELLERS' EXCEPTIONS
The Moellers filed eleven exceptions to the Recommended Order entered by the hearing officer. Each exception will be addressed specifically to correspond by number to the particular exception of the Moellers.
Exception 1: The Moellers first disagree with the statement of the hearing officer that the Petitioners submitted copies of their proposed findings of fact to both the Moellers and the Department. My review of the file indicates that the Moellers may be correct in their assertion that the Petitioners submitted no copies to either party. There is no record in the Department's file of receipt of any proposed findings of fact from Petitioners. While I cannot personally verify whether the Moellers did receive such proposed findings of fact, I do note that Petitioners filed no response to the Moellers complaint in exception one. Therefore, I assume that the statement in this exception is correct. This would appear to be a violation of Florida Administrative Code Rule 17-221- 6.03(5), which requires any party filing any pleading with the Division of Administrative Hearings to serve copies simultaneously upon the other parties to the proceeding. Nonetheless, while I accept the Moellers' statement in this exception, I do not consider this dispositive of the issue before me - whether to uphold the hearing officer's Recommended Order. Since neither Section 120.57(1)(b)4., Florida Statutes, nor Florida Administrative Code Chapter 221-6 contemplate replies to proposed findings of fact submitted to hearing officers by opposing parties, and since neither the Moellers nor the Department allege any prejudice arising from the Petitioners' failure to comply with the above- referenced rule, I therefore must reject this exception as irrelevant.
Exception 2: The Moellers' second exception merely states that the transcript of the administrative hearing is available for review to substantiate the Moellers' exceptions. While submission of such transcript is necessary for me to review any findings of fact contained in a recommended order, the mere
statement of the transcripts' availability has no bearing on the merits of the case. This exception is therefore rejected as irrelevant.
Exception 3: The Moellers next object to the hearing officer's denial of their motion regarding the order of presentation and burden of proof. The Moellers allege that Petitioners should have been required to have the burden of proof in this proceeding to show why the consent order should be revoked. In this exception the Moellers further object to the hearing officer's characterization of the consent order as an "after the fact" permit.
I agree that the hearing officer mischaracterized the consent order as an "after the fact" permit, but uphold the hearing officer's determination regarding order of presentation and burden of proof. The Moellers may have violated Florida Administrative Code Rule 17-4.04(9)(c), and therefore Section 403.161(1)(b), Florida Statutes, for initiating construction of a 996 square foot dock in Outstanding Florida Waters without a permit. They avoided maintaining the dock as a continuing violation of the law, however, by halting construction of decking at 500 square feet, the maximum exempt amount pursuant to the rule. Remedial action to remove the partially completed project, therefore, was not necessary. Although pilings extended beyond the point where decking construction had stopped, the additional pilings did not, after construction, constitute a continuing violation of the law. 1/ What did require a permit was the additional construction (i.e., completion of decking) allowed by the consent order pursuant to the previously-exempted permit application.
The effect of the consent order was thus to authorize the construction of a facility requiring a permit pursuant to an application already filed with the Department, rather than to correct a violation. The consent order, therefore, was not an "after the fact" permit, but a substitute for a permit. This means that to obtain authorization to complete the project, the Moellers would have the burden of proving reasonable assurances as they would in a normal permitting case.
I must stress that this case does not involve a consent order designed either solely to bring a violator back into compliance with the law; or to require a violator to undertake remedial action that may alleviate but not necessarily eliminate violations, where such elimination is not reasonably attainable. The burden thus is not upon the Respondent in any consent order to provide reasonable assurances that water quality standards and all other appropriate rules and standards of the Department will be met. Where remedial action is necessary, the appropriate issue to be addressed is the reasonableness of corrective measures. This may or may not require total compliance depending on the facts of a particular case. In fact, in some cases the solution may only require the payment of a settlement fee, or even a decision to decline prosecution altogether. 2/ Specific examples of the appropriateness of a particular remedy or lack of remedy are beyond the scope of this Final Order, and must be addressed on a case by case basis. When, however, the consent order is designed simply to authorize an activity more appropriately the subject of a permit application, the standards for review must of necessity be the same.
Let me add that, in fairness to the Moellers, my rejection of this consent order should not preclude them from submitting a permit application to construct their dock beyond 500 feet. The record indicates that the Department did not review the subject consent order as a permit application. This deprived the Moellers of a complete determination by the Department as to whether the proposed expanded dock would comply with Department permitting standards. It was difficult, therefore, for the Moellers to determine in advance the proper scope of review for the consent order in this regard. I recognize that
challenges to consent orders are a relatively new proceeding, and little guidance has been provided in final orders or judicial decisions as to the proper scope of review. For these and other reasons I shall discuss later. I find that in this case the Moellers may now apply for a permit without that application being barred by the doctrine of res judicata. This exception, therefore, is rejected as to burden of proof but accepted as to the objection to the characterization of this proceeding as a "after the fact" permit.
Exception 4: This exception is to the hearing officer's refusal to accept the credibility of David Bishof's opinion, even though he was accepted as an expert in water quality standards, and no other expert witnesses testified at the hearing. This objection is to a finding of fact, and the Moellers cite no specific references to the record in support of this exception. It appears that the hearing officer rejected Mr. Bishof's opinion not because of lack of expertise, but because of failure to perform a thorough appraisal of the project in light of the Department's permitting standards. Mr. Bishof did appraise the previously proposed project in November 1983, at which time the waters in question were classified as Class III and the project proposed was significantly larger than the one contemplated in the consent order. Obviously, the finding of permittability must be based upon testimony regarding the underlying facts in support of the application, and not simply upon a conclusion that a project is acceptable. This finding, therefore, is simply another way of saying that the Moellers failed to carry their burden of proving the factual basis upon which this project could be shown to be permittable. This exception, however, must be considered in the light of the hearing officer's failure to consider mitigation. As I discuss in my response to the Department's exception, I consider the mitigation issue critical to this project. Therefore, I reject this exception, but only to the extent that I accept the hearing officer's finding with regard to inadequate presentation of evidence other than mitigation.
Exception 5: This exception, regarding the hearing officer's rejection of Mr. Bishof's testimony regarding the merits of the project, amplifies upon issues similar to those raised in exception number four. My response is therefore the same.
Exception 6: The Moellers next object to the hearing officer's finding that the Moellers continued to construct the dock until all the pilings were in place and 500 square feet of the main pier area was decked. While the Moellers appear to object to the manner in which the hearing officer expressed this finding, there appears to be no objection to the ultimate truth of the matter - that 500 square feet of decking and additional pilings were constructed. Since, as I previously stated, the existing decking and pilings do not constitute an ongoing violation in themselves, the characterization of this finding is irrelevant. This exception is therefore rejected.
Exception 7: The Moellers next object to the hearing officer's statement that the dock "can still be expected to shade approximately nineteen hundred square feet of sea floor." The basis for this exception is that the hearing officer had no testimony on which to base this finding. After reviewing the record, I have decided that I must concur with the Moellers' inference that the hearing officer appears to be interjecting his own opinion into this case without the support of any expert opinion or other credible evidence. As noted by the Moellers, the only expert witness who testified, Mr. Bishof, stated that there would be very little shading impact from the proposed dock. (T-40.) No contrary testimony was presented. The hearing officer's statement appears to be based upon information extrapolated from the previous dock application, which was not the project presented for consideration here. Nevertheless, as I have
previously indicated, the burden of proof was upon the Moellers to demonstrate entitlement to a permit, and not upon the Petitioners to demonstrate that the project would cause water quality violations. In this regard, as discussed previously in response to exception four, the hearing officer found that Mr.
Bishof's opinion could not be credited because it was based upon an inadequate review of the project that finding was based upon substantial competent evidence, and I am required to accept it. This exception, therefore, is rejected, but in the qualified manner of my response to exceptions four and five.
Exception 8: It is not clear to me what are the grounds for this exception. In part they appear to be based upon the hearing officer's refusal to accept additional expert testimony by Mr. Bishof. This aspect of the exception is rejected in the same manner as my response to exceptions four, five, and seven. To the extent this exception addresses the Moellers' ability to construct additional docks on their site, I shall discuss this aspect of the exception in my response to the Department's exception.
Exception 9: This exception is a simple statement that the Moellers disagree with the conclusions of law based upon heir exceptions to the findings of fact. This exception fails to comply with the requirements of Florida Administrative Code Rule 17-103.200(1), which provides:
Exceptions shall state, with particularity, the basis for asserting that the hearing officer erred in entering or admitting specific findings of fact, conclusions of law, or recommendations.
Without the benefit of legal argument or discussion in support of this exception, it is impossible for me to make a reasoned evaluation of the merits of this exception. This exception must therefore be rejected.
Exception 10: The Moellers next object to the hearing officer's finding that there was a one to three foot tidal drop at the project site, which the Moellers assert was apparently based on the non-scientific and erroneous "guess" by one of the Petitioners that there were seasonal tidal fluctuations of one to three feet. The Moellers have failed to provide me, however, with any citations to the record that would indicate that this statement was inaccurate or that some other tidal information was more accurate. While the Moellers state that the hearing officer ignored Mr. Bishof's testimony regarding numerous visits to the site subsequent to his formal permit review in November 1983, a review of the record indicates that there is no testimony indicating when Mr. Bishof may have returned to the site, what he may have seen, and what evaluations he may have made from what he saw. A mere statement by Mr. Bishof that he had returned, even repeatedly, to the site would obviously not be sufficient in itself to prove that he may have adequately examined the project site for the purposes of reviewing the issues that are the subject of this hearing. The Moellers' reference in this exception to tide tables should also not be considered, because the tables are not in the record of the case. This exception, therefore, is rejected.
Exception 11: In this exception the Moellers object to the hearing officer's quoting "out of context" certain statements made in the intent to deny a previous permit application submitted by the Moellers. The hearing officer's characterization of the intent is irrelevant both because the document speaks for itself and because that intent did not address the project that is the
subject of this proceeding Exception 11 also addresses the probative value of the Moellers' giving a conservation easement. This exception will be addressed in my response to the Department's exception. Finally, the Moellers complain in this exception that the hearing officer rejected the doctrine of res judicata but then in essence applied it by relying on the statements of denial in the previous permit application as a basis for rejecting the new project. There was testimony in the record by Mr. Bishof that the new project was substantially different than the old one. Rejection of the old permit, therefore, would not be a basis for applying res judicata to reject the new proposal. This differentiates this case from Thomson v. Department of Environmental Regulation. Case Nos. A2-337, BD-330, Opinion Filed May 1, 1986, rehearing denied October 6, 1986 (Fla. 1st DCA), wherein the Department denied for res judicata a permit application that was substantially the same as a previously rejected one.
Nevertheless, the new proposal must still stand on its own merits. Since the hearing officer found, separately, that the Moellers failed to provide reasonable assurances with regard to the new project, this exception must be rejected in the same qualified manner as my response to exception four. Let me caution that in the event of a new application by the Moellers, the findings with regard to the original 1983 project should not be considered dispositive as to the merits of any such new application based upon the new configuration.
RESPONSE TO DEPARTMENT EXCEPTION
The Department objects to the hearing officer's failure to consider and issue a finding of fact on the question of whether the conservation easement provided by the Moellers should have been considered by the hearing officer as an acceptable mitigation measure pursuant to Section 403.918(2)(b), Florida Statutes. This requires the Department to consider, if a project otherwise fails to meet the statutory criteria contained in Section 403.918(2)(a), Florida Statutes, measures proposed by the permit applicant to mitigate adverse affects that might be caused by the project. The Department argues that the conservation easement prevented the possibility that additional exempt (500 square feet or less) docks might be constructed on the Moellers' property in the area of the project site. By agreeing to prevent such further construction in exchange for building one longer dock, the Moellers would be avoiding greater potential degradation at the site.
Had the hearing officer concurred with such a finding, this certainly would have been a factor in favor of permittability of the project. The only statement made by the hearing officer regarding mitigation, however, was that "no evidence was presented to mitigate [the project's] adverse impacts." This statement is simply incorrect. The hearing officer accepted evidence (Moellers' Exhibit 11) of the existence of the conservation easement, which Mrs. Moeller testified she prepared and duly recorded (T37-39); and heard expert testimony from Mr. Bishof (T14-16) as the environmental benefits of the conservation easement. While the hearing officer acknowledged the filing and recording of the easement in paragraph nine of his Recommended Order, he made no attempt to evaluate the evidence presented as to whether the conservation easement might provide mitigation. In its Proposed Recommended Order, paragraph 36, the Department requests a finding regarding this mitigation. The only response found in the Recommended Order is a statement in the appendix that the Department's proposed findings of fact numbers 28 to 39 are "[a]dressed in paragraphs 15 to 21." As recently stated in Island Harbor Beach v. Department of Natural Resources. 476 So.2d 1350 (Fla. 1st DCA 1985), a hearing officer must rule specifically on proposed findings of fact, and cannot simply address them through a broadly phased paragraph. While the case acknowledges that proposed findings may be lumped together if they are similar - e.g., all
immaterial, cumulative and so forth - the mere statement that proposed findings of fact are "addressed," as here, half in the first half of the Recommended Order and half in the latter half, clearly defeats the intent of Sections 120.57(1) and 120.59(2), Florida Statutes, as explained in the above-cited case, to apprise litigants and reviewers of recommended orders of the basis for the rejection of findings.
I find that the entry by the Moellers into a conservation easement that would limit otherwise allowable degradation in an Outstanding Florida Water is a mitigation proposal that by law must have a bearing on whether a permit should be issued for such a project. The hearing officer's failure to consider such mitigation is fatal to his conclusion that the Moellers should be denied their so-called after the fact permit. Therefore, I accept this exception.
Nevertheless, this failure cannot in itself justify a reversal of his rejection of the consent order in a manner that would reinstate it, since, as I have previously stated, there are still proof problems associated with other aspects of the project's permittability. This unique situation compels a more appropriate resolution. Given that this matter came to me in the posture of a consent order endorsed by the Department, that the project was in fact one for which a permit was more appropriate, that the Moellers relied on the consent order approach even though they could have simply reinstated their permit application, that there was no clear precedent as to the consent order's scope of review, and that the hearing officer failed to make a critical finding with regard to mitigation. I believe that it would be unfair to the Moellers to tell them their project is now rejected because they should have defended the consent order as a renewed permit application or urged the Department to take a permitting as opposed to enforcement approach in the first place. Nonetheless, I caution the Moellers that if they now decide to submit a permit application for their dock, the burden will be upon them to demonstrate reasonable assurances of entitlement to the permit, and not upon the Department to show the correctness of any intent to issue that might occur in response to said application.
Having considered the Recommended Order, the parties' exceptions and responses, and the testimony and evidenced adduced at the hearing, it is
The hearing officer's findings of fact, conclusions of law and recommendation are adopted except as modified by my rulings on the exceptions.
The consent order between the Department and the Moellers, OGC File No. 86-0240, is vacated, and the Department is directed to return to the Moellers the $150.00 settlement fee paid to the Department by the Moellers to the extent any or all of said payment has been made. 3/
Nothing in this Final Order shall preclude the Moellers from submitting a permit application to extend their dock beyond the five hundred feet currently constructed. Such application shall be considered on its own merits, and not on the fact that the consent order has been vacated. I express no opinion at this time as to whether such an application is permittable.
Any party to this order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal
along with applicable filing-fees with the appropriate District Court of Appeal. This Notice of Appeal must be filed within 30 days from the date this order is filed with the clerk of the Department.
DONE AND ENTERED this 4th day of November, 1986 in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
FILING AND ACKNOWLEDGMENT
FILED on this date, pursuant to s. 120.52 Florida Statutes, VICTORIA J. TSCHINKEL
with the designated Departman. Secretary Clerk, receipt of which is
hereby acknowledged. 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Tallahassee, Florida 32399-2400
Clerk Date (904) 488-4805
ENDNOTES
1/ See Gar-Con Development, Inc. v. Florida Department of Environmental Regulation, 468 So.2d 413 (Fla. 1st DCA 1985), wherein the court held that the driving of pilings did not constitute "dredging" so as to require a dredge and fill permit from the Department under then existing Department rules. The Department subsequently amended Florida Administrative Code Rule 17-4.020(16), effective March 18, 1986, to include "pilings" within the definition of "materials" subject to Department regulations on filling. Since the Moellers drove their pilings prior to the enactment of this rule, that activity did not, at the time, constitute in itself filling without a permit in violation of Section 403.161, Florida Statutes, and applicable rules, except as otherwise noted above with regard to initiation of construction of a longer dock. Had the pile driving occurred subsequent to March 18, 1986, therefore, I would not reach the sane conclusions with regard to this aspect of the consent order as I have done today.
2/ In this regard, the Department must consider, in deciding how or whether to prosecute a case, the Department's own resources, the resources of the responsible party, and the nature and degree of violation in determining whether and how to exercise prosecutorial discretion in the particular case. This concept has been expressly recognized by the legislature, in the area of cost recovery actions. See, e.g., Section 376.303(1)(e), Florida Statutes, as contained in Chapter 86-294, Laws of Florida, which requires the Department to seek recovery of Water Quality Assurance Trust Fund expenditures "unless the Department finds the amount too small or the likelihood of recovery too uncertain."
3/ The record does not reflect whether this money has been paid to the Department.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER, has been furnished by U.S. Mail to WILLIAM J. KENDRICK, Hearing Officer. Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301: JAMES T. KENDRICK, Attorney for Petitioners, Post Office Box
1117, Key West, Florida 33041: JAMES W. BOWLING, Attorney for Respondents Charles & Julia Moeller, Vernis & Bowling, P.A., 82685 Overseas Highway, Post Office Box 611, Islamorada, Florida 33036; and DOUGLAS H. MACLAUGHLIN, Deputy General Counsel, Attorney for Respondent Department, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, on this 5th day of November 1986.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Aug. 06, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 04, 1986 | Agency Final Order | |
| Aug. 06, 1986 | Recommended Order | Developer failed to provide assurances that water quality standards would not be violated as a consequence of construction of 8-slip marina |
