corporation; and GARY L. HORNSBY, ) d/b/a CAPTAIN JIM'S MOTEL FISHING )
vs. ) CASE NO. 87-0589
Respondents. )
For Petitioner: G. Donald Thomson, Esquire
Claire A. Duchemin, Esquire Tallahassee, Florida
For Intervenor: Frederick C. Kramer, Esquire (for Applicant) Marco Island, Florida
A formal administrative hearing was held in this case in Naples, Florida, on August 18, 1987. The issue is whether the Department of Environmental Regulation should grant the application of Adventure Construction & Canvas, Inc., for a permit to construct a pile-supported dock in the Marco River (Class II waters), a natural, navigable water body in Collier County, Florida. The Department of Environmental Regulation (DER) requested modifications, got them, and gave notice of intent to issue the permit. The petitioners timely filed a petition for a formal administrative proceeding disputing the issuance of the permit. At the final hearing, the intervenor dismissed its Petition For Leave To Intervene, and the DER gave notice that the Intent To Issue inadvertently omitted certain conditions to the draft permit.
After the hearing, the parties asked for and received 20 days from the filing of the transcript of the final hearing in which to file proposed
recommended orders. The transcript was filed on September 17, 1987, making proposed recommended orders due by October 7, 1987. Explicit rulings on the parties proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 87-0589.
Adventure Construction & Canvas, Inc. (Adventure or Applicant) applied to the Department of Environmental Regulation (DER) on November 4, 1986, modified on December 22, 1986, for a permit to construct a single four foot by
60 foot pile-supported dock in the Marco River (Class II waters), a natural, navigable water body in Collier County, Florida. The dock structure applied for would extend 60 feet eastward into the water from the southeast corner of the terminal platform of Adventures existing dock. The extension would lengthen the existing dock to a point almost as far into the water as the existing docks of the Applicant's neighbors to the north and south.
As originally designed, the dock would run to the east 63 feet, with one 20 by 3 foot finger pier to the south, then run south 20 feet (by 4 feet), then run east again 20 feet. This original design would have extended approximately 20 feet further east into the Marco River than either the dock of the neighbor to the north, the Sunrise Bay Resort And Club Condominium Association (the Sunrise Club), or the dock of the neighbor to the south, the petitioners, the Riverside Club Condominium Association, Inc., (the Riverside Club) and Gary L. Hornsby, d/b/a Captain Jim's Motel Fishing Resort (Captain Jim's). As originally designed, the dock extension would have been approximately 30 feet from the Sunrise Club dock, at the closest point (the southern end of the "T" section at the waterward end of the Sunrise Club dock) and approximately 60 to 65 feet from the petitioners' dock at the closest point (between the northern end of the "T" section at the waterward end of the Riverside Club/Captain Jim's dock and the southernmost part of the proposed dock, as originally designed.)
Although it would be in Class II waters, and there are shellfish in the vicinity, the bottom in the immediate area around the docks and proposed dock extension is sandy, and there are no shellfish beds, seagrass or other biologically significant features in the immediate area. With standard permit conditions, there are reasonable assurances that the proposed dock extension would not adversely affect marine or other wildlife.
The Applicant's property and existing dock is under lease to Yacht Services, Inc., for five years with options to renew. The lessee conducts a business on the property consisting of: boat sales; sale and installation of marine radio and navigation equipment and of pre-made canvas sails and boat tops, covers and canopies; and boat engine repairs and tune-ups. Only minor engine repairs and tune-ups are and would be performed on the docks. These operations would not introduce oil or grease into the water and would not pollute the water. More major repairs are and would be made by driving or towing the boat to be repaired to the nearby municipal dock and trailing the boat over roads to the building on the upland portion of the Adventure property, some 150 to 200 feet from the river bank, where Yacht Services performs more major repairs. With standard permit conditions, there are reasonable assurances that the proposed dock extension will not adversely affect water quality in the Marco River.
On review of the application, the DER perceived a navigation problem posed by the original location and design of the proposed dock extension.
Although parts of the Sunrise Club dock are now under enforcement proceedings as having been constructed without a permit, the DER still recommended moving the location of the proposed dock approximately 20 feet to the south, putting approximately 50 feet between the two docks at the closest point. At the same time, the DER recommended that the Applicant (and its lessee) be limited to a single, straight four foot by 60 foot dock, eliminating the finger piers and turns. As a result, the distance between the proposed dock, as modified, and Captain Jim's dock also would increase, to 70 feet between the two closest points. In addition, the DER recommended that the Applicant (and Yacht Services) be limited to the use of only the north side of the dock extension for docking.
The applicant agreed to the DER's recommendations and modified its application accordingly on or about December 22, 1986. But when the DER gave notice of its intent to grant the application, as modified, and issue a corresponding permit, the DER inadvertently omitted the limitation to use of only the north side of the dock for docking. When this omission was brought to the Applicant's attention at the final hearing, the Applicant, through Yacht Services' principal, reaffirmed the Applicant's acceptance of this limitation.
The petitioners put on no evidence placing in controversy the Applicant's assurances, accepted by the DER as reasonable, that the proposed dock would have no significant adverse impact on water quality or on marine or other wildlife or any other biologically significant features of the Marco River. The only evidence the petitioners presented involved the alleged effect of the proposed dock on navigation.
The current at the site of the proposed dock is relatively swift. Each day, there usually are two tidal periods, each lasting 12-13 hours. During each tidal period, the tides flow in (from north to south) and out (from south to north and somewhat stronger than the incoming tides.) The peak tide lasts for approximately one hour, preceded by approximately three to four hours of a strong, gradually increasing tide. Then there usually is approximately 90 minutes of slack tide before the tide gets stronger again (in the other direction.) During new moons, which occur for three days every 28 day cycle, the tidal flow is magnified.
During periods of strong tides (and correspondingly strong current in the river at the site of the proposed dock), docking can be difficult at the Applicant's dock, the Sunrise Club dock, Captain Jim's dock and several other docks in the area. The difficulty encountered depends on the strength of the tidal current, the experience of the boat operator and the kind of boat (design, size and power.) But, generally, the distances between the proposed dock and the existing docks are enough for a reasonably experienced boat operator to use all three docks for boats of the size (15 to 30 feet) and kind normally used in the area without too much difficulty.
Many of the boaters who can be expected to use these docks are quite inexperienced "snow-birds" wintering or vacationing in the area. Some of these can be expected to have difficulty docking and shoving off from these docks in strong tides with or without the proposed dock extensions. With the proposed dock extension, some might find themselves bumping the new dock, coming to rest at it or being pinned to it temporarily while docking at or leaving the Sunrise Club and Caption Jim's dock (just as this now occasionally happens with the existing Adventure dock and the other docks in the area.)
Experienced boaters might have to alter their normal and preferred approach to the Sunrise Club and Captain Jim's dock as a result of Adventure's proposed dock extension and, depending on the factors previously mentioned, may on occasion find it difficult to dock there at all. (For example, if the docks are busy and the boat is very large.)
There is access to Riverside's dock from both the north and south. Currently, access from the south is sometimes restricted during strong outgoing tides due to the fact that a boat moored to the south end of the dock may not possess enough power to pull away from the dock. During these times, access is easier from the north, the side closest to the proposed dock.
There was no evidence as to how often the currents render the south side of Riverside's dock inaccessible to boats. However, boats are often moored on that side.
During those times when the currents inhibit access to the south side of Riverside's dock (peak outgoing tides), there is access from the north. The presence of Adventure's proposed dock may potentially be a hindrance to boats attempting to gain access from this direction. Currently, boaters navigating larger boats in this area cut a wide angle to allow themselves to face directly into the current as they near the dock. This wide angle takes them across Riverside's riparian line near the area of Adventure's proposed dock. While the presence of this dock would not allow for such a wide angle in the future, the typical size boat using Riverside's dock (under 30 feet) does not need to make this wide angle. Even inexperienced boaters will still be able to make this approach, albeit with some difficulty.
Exiting Riverside's dock from the north may also be a potential problem if the proposed dock is built. When docked on the northern side during strong outgoing tides, a boater often must back out into the area where Adventure's dock is proposed to be built and then execute a turnaround before heading into the channel. However, this is necessary only during the strongest outgoing tides; under any other situation, a boater can depart from the dock and head into the channel without having to cross the riparian line.
It is the strength of the currents in the area that causes concern about the proposed dock's impact on navigation. The combination of existence of this dock and strong currents will make it more difficult for inexperienced boaters to dock on the northern side of Riverside's pier during peak outgoing tides. During incoming tides or slack times, those boaters (who make up a majority of Riverside's clientele) would have no problems entering or leaving the dock from either direction. Experienced boaters will still be able to access and leave the dock from either direction at any time of the day. In short, the potential for this proposed dock to create a navigational hazard will exist mainly during peak outgoing tides and even then there are other factors (, experience of the pilot, boat size, engine strength) that will determine the ability of boaters to navigate in the area.
The proposed dock will have absolutely no impact on navigation in the channel to the east of the three docks involved in this case.
There are reasonable assurances that the proposed dock will not be contrary to the public interest.
CONCLUSIONS OF LAW
The Applicant has provided the reasonable assurances required by Section 403.918(1), Florida Statutes (1985), and Rule 17-12.070(1), Florida Administrative Code (1986). Cf. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
In addition, Section 403.918(2), Florida Statutes (1985), provides:
(2) A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the
project is not contrary to the public interest. See also Rules 17-12.070(3) and 17-4.242, Florida Administrative Code (1986).
Section 403.918(2)(a), Florida Statutes (1985), provides:
In determining whether a project is not contrary to 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.
Criteria 2, 6 and 7 of Section 403.918(2)(a) are not particularly pertinent to this case. Likewise, most of criterion 4, except in relation to
"recreational value," is not pertinent to this case. Certainly, the proposed dock will not be contrary to the public interest in light of any of those criteria. As to criterion 5, the proposed dock will be permanent, but its permanence does not have particular significance.
The criteria pertinent to this case involve the question of the proposed dock's effects on "navigation." Criteria 1, 3 and 4 are pertinent only in relation to the navigation question. The petitioners contend that the proposed dock would be contrary to the public interest because it adversely affects "navigation," i.e., the ease of docking at the existing Sunrise Club and Captain Jim's docks. As a result, they contend, the proposed dock adversely affects the public health, safety or welfare and recreational values. The petitioners also contend that the proposed dock will adversely affect the riparian rights of the adjacent property owners the Sunrise Club and the petitioners.
The recent decision in Miller v. Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987), construes the question of adverse effect on the "property of others," raised in the first criterion under Section 403.918(2)(a), as not to encompass the question of an alleged trespass on the property of others. The court explained:
The statutory reference to property of others has no logical meaning outside an environmental context
in light of the jurisdiction to adjudicate all actions involving the title and boundaries of real property conferred upon circuit courts by section 26.012(2), Florida Statutes. And, as noted by appellee, agencies would not, by their nature, ordinarily have jurisdiction to decide issues of law inherent in evaluation of private property impacts. Id.
Except for the situation addressed by the Miller decision, it is apparent from the criteria that, if consideration of the criteria is restricted to "an environmental context," the "environmental context" must be construed in its broadest terms. Consideration of criteria such as "the public health, safety and welfare," "navigation," "fishing or recreational values," "significant historical and archeological resources," and "current condition and relative value of functions being performed" essentially involves the DER in a process in the nature of land and water use determination. Compare Sullivan v. Northwest Florida Water Management District, 490 So.2d 140 (Fla. 1st DCA 1986)(Section 403.918(2) and its criteria broaden the public interest test and includes adverse effect on a property owner's access to navigable waters within the statutory zone of interest) with Grove Isle, Ltd. v. Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984)(absent statutory criteria, the public interest test must be construed to relate to the control of air or water pollution).
In the Amended Final Order, Mandarin Landing Association, Ltd. v. Department of Transportation, et al., 8 F.A.L.R. 633, 635 (DER 1985), states that "Section 403.918 must be read in pari materia with the other provisions of Chapter 403" and that they "make it clear that the purpose of Chapter 403 is to
protect the air, water, and natural resources of the state." Id. The Mandarin Landing final order concludes and holds "that Section 403.918(2)(a)1. should be construed to consider only environmental impacts on the property of others." Id. But the Final Order, Ryan v. Spang, et al., 8 F.A.L.R. 4288, 4290 and 4295 (DER 1986), condones consideration of the effect of a proposed dock on ease of docking at nearby existing docks and the "potential hazard" of vessels leaving a proposed dock and entering the channel under Criterion 3 adverse effect on navigation.
"Navigation," as used in Criterion 3, is not defined. "Navigable waters," as used in other contexts, has been defined as a water body which "is used, or is susceptible of being used ... as a highway for commerce, over which trade and travel are or may be conducted in the ordinary modes of trade and travel on water." Baker v. State, 87 So.2d 497 (Fla. 1956), citing Oklahoma v. Texas, 258 U.S. 574, 42 S.Ct. 406, 66 L.Ed. 771 (1922). The same opinion defines navigable water more broadly as a body of water that "may be used for purposes common or useful to the public in the locality." Id. See also Odom v. Deltona Corp., 341 So.2d 977, 988 (Fla. 1977). The term "navigation," as used in Criterion 3, should be interpreted broadly enough to include navigation among docks, as well as navigation in the lanes and channels. Cf. Final Order, Ryan
v. Spang, et al., supra. But an effect on navigation among docks is not as serious a consideration as an adverse effect on navigation in the lanes and channels.
The potential adverse effect on the property of others (boats trying to use Captain Jim's and the Sunrise Club docks bumping alongside the proposed dock) is both speculative and minor. Likewise, the potential adverse effect on health and safety (from trying to fend boats off of the proposed dock) is speculative and minor. The same can be said about the potential adverse effect on the recreational value of the Captain Jim's dock. Also, these potential adverse effects are no different that the potential that exists without the proposed dock.
Regarding the alleged adverse effect on the riparian rights of the Sunrise Club and the petitioners, the Applicant seeks only to exercise the same riparian rights that its neighbors now enjoy. Contrast Benton v. Maine, 6
F.A.L.R. 5996 (DER 1984). It is incongruous for the petitioners to oppose the exercise of the Applicant's riparian rights in the name of protecting their own riparian rights.
As found in the Findings of Fact, the proposed dock, as modified and described in the notice of intent to issue (with the inadvertently omitted requirement that boats dock only on the north side), may have minor adverse effects on navigation, but, taking all of the criteria of Section 403.918(2)(a) into consideration, the Applicant has given reasonable assurances that issuing the permit (with the additional limitation) will not be contrary to the public interest. Cf. Sluggett v. Department of Transportation, et al., 6 F.A.L.R. 556 (DER 1987).
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Adventure Construction & Canvas, Inc., as modified, and issuing a permit described in the Notice Of Intent To Issue (with the additional limitation that only the north side of the proposed dock extension be used for docking.)
RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0589
To comply with Section 120.59(2), Florida Statutes (1985), explicit rulings are made on the parties' proposed findings of fact.
1.-20. Accepted and, to the extent necessary, incorporated.
G. Donald Thomson, Esquire 801 Laurel Oak Drive
Claire A. Duchemin, Esquire Post Office Box 1833 Tallahassee, Florida 32302
Frederick C. Kramer, Esquire 870 Bald Eagle Drive
Daniel H. Thompson, Esquire General Counsel
