JAMES W. WILLIAMS, REGINA ) WILLIAMS, AND CHARLES W. CAUSEY, )
vs. ) CASE NO. 87-3592
Respondents. )
Upon due notice, this cause came on for formal hearing on January 8, 1988, in Key Largo, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
For Petitioner: James T. Hendrick, Esquire
For Respondent, Richard Grosso, Esquire Department of Department of Environmental Environmental Regulation
Whether or not Respondents Moeller are entitled to the issuance of a dredge and fill permit for the widening of an existing dock two feet wide so as to create a dock four feet wide.
The burden in this cause is upon the party seeking the permit (Respondents Moellers) to show they have provided reasonable assurances that the proposed project (1) will not cause water quality standards to be violated and (2) will not be contrary to the public interest. For projects that are within or will significantly degrade an Outstanding Florida water, the applicant must show that the project is "clearly in the public interest." See, Section 403.918, Florida Statutes.
Respondents Moellers' motion to dismiss for lack of standing was denied by order of September 30, 1987, and was raised again in their post-hearing proposals. It is again denied within the following Conclusions of Law.
Respondents Moeller (hereafter sometimes referred to as "applicants") presented the oral testimony of Dr. Arthur Weiner, who was qualified and accepted as an expert in marine biology and ecology, water quality, and the physiological ecology of marine plants, and the oral testimony of Julia Moeller. They had admitted in evidence exhibits 1, 1A, 2, 4, 6, 9(a)-(k), 11, 12, 13A, 13B, 14A, 14B, 15A, 15B, and 16(a)-(c).
Respondent Department of Environmental Regulation (DER), which supports the Moellers' permit application, presented the oral testimony of David Bishof, who was qualified and accepted as an expert in water quality, marine biology, and the ecological impact of dredge and fill projects, and had admitted one exhibit.
Petitioners Williams and Causey, who oppose the permit application, (hereafter sometimes referred to as protestants"), presented the oral testimony of Dr. Brian LaPointe, who was qualified and accepted as an expert in marine ecology, water quality and the physiological ecology of marine plants, and of James and Regina Williams. Five exhibits were submitted at hearing. A deposition of Petitioner Charles W. Causey, (P-6), was objected to by Respondents. Provision was made for after-filed memoranda of law to argue the objection; the failure of Respondent to file their memoranda is deemed waiver of their objection, and P-6 has been admitted in evidence and considered.
Official recognition was taken of Section 27F-8.03, now renumbered and reassigned to Chapter 28, and of Chapters 18-2 and 17-3, and Rule 17-4.242, Florida Administrative Code.
All parties have submitted their respective proposed findings of fact and conclusions of law, the findings of fact of which have been specifically ruled upon in the appendix of this recommended order, pursuant to Section 120.59(2), Florida Statutes.
Applicants Charles and Julia Moeller own property in Islamorada, Monroe County, Florida, located on Florida Bay, which is currently designated an "Outstanding Florida Water."
John E. Williams and Regina Williams own and reside upon property abutting the northern boundary of the applicants' property. Mr. Causey's property abuts the northern boundary of the Williams' parcel. Each has substantial frontage on Florida Bay. The Williams and Mr. Causey have used and continue to use the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating, and other recreational activities.
The permit application at issue in the present proceeding is to widen an existing dock by two feet so as to increase it to approximately 996 square feet. No dredging or filling will be necessary to add the plankings to the existing dock. The proposed project can in no way further affect the navigability of Florida Bay, or cause harmful erosion or shoaling. There will be no archeological impact.
The permit sought in this application seeks to modify the dock already existing at the site, which, because it is less than 500 square feet, is currently exempt from DER permitting regulations. The entire prior history of the existing dock is summarized in the November 5, 1986, Final Order in the consolidated cases of Williams et al. v. Moeller et al., DOAH Case Nos. 86-1095 and 86-1096, which concerned disqualification of an intervening consent order and which is discussed in the following Conclusions of Law.
The Moellers set out in 1984 to construct a dock of different dimensions and configurations, and in 1984 DER denied by final order a permit application for an L-shaped dock 90 feet by 5 feet and 170 feet by 5 feet or approximately 1300 square feet with eleven boat slips. Then, in January 1985, the Moellers applied to DER for a permit to build a dock four feet wide, covering an over-water surface of 996 square feet with eight boat slips, and the application gas returned bearing the stamp "exempt" across the front of it.
Before the 996 square foot dock could be constructed, the approval of the Trustees of the Internal Improvement Trust Fund was required. The Trustees granted approval, conditioned upon the Moellers granting a conservation easement prohibiting any other docking structures being built upon their shoreline.
The conservation easement is contingent upon the Moellers' acquisition of all other authorizations necessary to complete the 996 square foot dock.
Before the Moellers could begin construction of the proposed 996 square foot dock, Florida Bay, within which the dock would be placed, was designated as an "Outstanding Florida Water." Upon designation, docks greater than 500 square feet were no longer exempt from DER permitting requirements. The Moellers became aware of the change by way of a letter from DER's representative, David Bishof, which they received shortly after construction had begun.
Since some of the pilings were already in place, the Moellers proceeded to construct a dock of exempt dimensions, installing all pilings and railings, but stopping construction when the over-water surface area of the decking was
500 square feet. In so doing, the Moellers made a conscious decision of creating the length they desired in their second permit application but limiting its width. In so doing, they rejected the options of either reducing the length of the dock or applying for a permit to construct a dock of the originally intended length with a width of four feet. The final construction in place, as of the date of formal hearing in this proceeding, can be described as a dog- legged finger pier with a railing on one side. The planking extends to a width of two feet and there is a space of approximately two feet between the edge of the planking and the railing which runs along the right (north and then west) side of the dock. As currently configured, the existing dock is 2 feet wide and extends into the Bay perpendicular from the shoreline for 179 feet, at which point it turns south, extending another 79 feet, roughly parallel to the shoreline. This existing dock has a total over-water surface area of 500 square feet and is thus exempt from DER permitting regulations.
The dock as constructed and now in place complies with all DER rules, regulations, and policies and is being currently utilized by the applicants and others; however, the dock requires that those who walk thereon move single file and presents minimal safety problems associated with its narrow width, particularly with regard to handicapped users and people carrying coolers, fishing gear, and other materials associated with recreational fishing, boating, and swimming. Mrs. Moeller's mother, confined to a wheelchair, is not able to use the existing dock at all.
On December 4, 1986, the Moellers applied a third time to DER, this time for a permit to expand their dock from 2 to 4 feet, thereby doubling the planked area of the dock. One of the grounds alleged as supporting the application for extension is the hazardous nature of the dock as presently configured. DER responded with an Intent to Issue the above requested permit, upon compliance with several conditions. These several conditions require: prohibition of liveaboards, fueling facilities, major boat and motor maintenance and hull scraping or painting. Petitioners Williams and Causey objected, and this proceeding followed.
The addition of 2 feet of planking for the entire width of the dock will not increase the number of boat slips as now existing. Widening the dock should make it more accessible to people, particularly the handicapped, and will eliminate the minimal hazards now existing. It may also be inferred that widening the dock will enhance the Moellers' opportunity to develop the upland as a condominium community which they have expressed the intent to do.
The only certain environmental impact associated with the widening of the dock alone, that is, the only environmental impact not already existing as a product of the existing two foot wide dock, is the extra two feet of shading of the grassbeds (Thalassia testudium) which lie directly beneath the dock. Such shading of Thalassia or "turtle grass" beds would tend to cause a reduction in their photosynthetic activity. It is by the process of photosynthesis that these grasses contribute dissolved oxygen, a crucial element for a healthy marine environment. It may also be reasonably inferred that some sporadic shading will occur as a result of increased dockage of boats, but absent an increase in the current number of boat slips, this sporadic shading cannot be automatically attributed to granting of this permit application as opposed to the existence of the dock now in place, and the sporadic shading associated with use of the eight boatslips, is greatly reduced by the Moellers' current voluntary restriction against docking of liveaboards, and, if the permit is granted as proposed, the permit restriction against liveboards.
The particular Thalassia beds underneath the Moellers' dock are currently in a relatively pristine condition and are producing large amounts of oxygen in spite of the fact that the dock as presently configured has been in place for some time. While the additional two feet of planking will somewhat reduce the amount of light which reaches the grassbeds with an attendant reduction in the dissolved oxygen levels at the site attributable to photosynthesis, this effect will be felt in a limited and finite area only and furthermore is not expected to drop dissolved oxygen levels below 5 milligrams per liter which is the applicable DER standard. Protestants' expert, Dr. Brian LaPointe, conceded that any adverse impact of the widened dock would be localized. He presented no figures for total biomass. The control points chosen by LaPointe were 100 feet away from existing docking facilities, and exhibited no measurable impacts on the existing docking facilities. To the extent there is contrary evidence in the record, it amounts to speculative projections based upon what quantitative measurements might have resulted if they had been taken at a different time of the year from those actually taken by Dr. LaPointe, or observations skewed by hurricane after-effects, or is refuted by evidence of the interaction between plant adaptation to degrees of shade, sun movement, and the height of the existing and proposed planking, and by the presence of at least minimal tidal wind and wind activity.
Also, a number of factors stand to mitigate any adverse dissolved oxygen impact. These factors include the high amount of dissolved oxygen
currently being produced at the site, the fact that the shadow of the dock moves with the passage of the sun and the seasons of the year, and the fact that seagrasses can adapt to certain degrees of shading.
Dr. LaPointe compared, through quantitative analysis, the project area with two other areas similar in physiology but with greater marina usage than the Moellers' existing 2 foot wide dock or what usage might be reasonably expected from no increase in the number of boat slips were the permit granted contingent upon the agreed limitations to prohibit liveaboards and boat maintenance. Dr. Weiner testified as to several distinctions between the project site and the two sites used for comparison by Dr. LaPointe, such as fish house activity including excessive mineral increases from bird droppings, and the presence of boat maintenance. Due to significant differences between the survey sites chosen by Dr. LaPointe and the project site, his opinion that the cumulative environmental consequences of the proposed dock expansion would be the eventual deterioration or destruction of the seagrass bed resulting in a degradation of water quality through nutrient enrichment and reduction of dissolved oxygen and some nonspecific impact on the fish population, cannot be accepted.
While the use of docking structures often is associated with heightened nutrient levels in surrounding waters, the site of the Moellers' dock does not now exhibit elevated nutrient levels and the additional two feet of planking will not increase nutrient loading. Although each dock is different and the Moellers' existing dock is of a unique configuration, docks of similar size do not tend to produce violations of the applicable dissolved oxygen standard. The possibility of elevated nutrient levels at the site is greatly lessened because docking of liveaboard boats and presence of fueling facilities and boat maintenance, all common sources of nutrients at dock sites, are currently prohibited by the Moellers. Provided this prohibition continues through permit restrictions, the elevation of the nutrient level will not occur or will be satisfactorily minimal. Without a permit being issued, DER would not have any mechanism to restrict the operation of an exempt dock. In contrast, the agency has proposed, as part of the requested permit, and the Moellers have agreed, to prohibit liveaboards, fueling facilities, and boat and motor maintenance and hull scraping or painting at their dock.
Similarly, the granting by the Moellers of the conservation easement to the Trustees of the Internal Improvement Fund negates the possibility that this project could have an adverse affect on water quality or marine resources, because the easement prohibits any further docking facilities from being built along the Moellers' shoreline, thereby eliminating the cumulative impact of such additional docks. Permit issuance for the widening of the dock would make the conservation easement effective, and would thereby preclude the construction of other exempt docks. The effects of one centralized 996 square foot dock are expected to be much less than those which would be associated with two to four
500 square foot docks (2000 square feet maximum) of over-surface planking.
In considering the various statutory factors relating to public interest, the agency's expert, David Bishof, testified that even if the proposed additional planking may cause a slight reduction in the essence of the flora of the area and photosynthesis, this effect would be more than offset by the elimination of the possibility of having multiple docks at the site. Absent activation of the conservation easement, or some externally limiting factor, it would be possible for the Moellers to construct one dock of 500 square feet every 65 feet along their single parcel, 280-foot shoreline for a total of 3 or
4 docks, without having to obtain a DER dredge and fill permit, since such small
docks are exempt from such permitting requirements. While it is imaginative to suppose any one owner would want four such docks, given the possibilities for development, it is not entirely speculative, given Bishof's evidence as a whole, that two or more such docks might be added. Bishof recommended issuing the permit based on his opinion that the conservation easement and permit restrictions prohibiting liveaboards, boat and motor maintenance, and hull painting and scraping would be sufficient mitigation of any negative environmental factors. In so doing, Bishof admittedly did not take into consideration standards or requirements of the Department of Natural Resources or the Army Corps of Engineers which might restrict the construction of an additional four docks under 500 feet, but neither was evidence presented at formal hearing to show that such standards actually present any real and present impediment to one or more such constructions. Moreover, those issues between the Moellers and other agencies cannot be resolved within this proceeding as framed between these parties.
Although Petitioners anticipate pollution from increased nutrients caused by greater marina activity, the anticipation expressed by the lay witnesses, Mr. and Mrs. Williams and Mr. Causey, is largely of the kind "futurists" make based on general observations that more people in any area automatically create more activity, resulting in water and noise pollution. The viewpoint is not compelling as evidence given the overall circumstances of this case and in light of the specific rule and statutory standards to be applied. Mr. and Mrs. Williams and Mr. Causey also object to the dock construction as proposed because they anticipate increased danger to swimmers, a reduction in the value of their property, and a loss of fish life as a result of increased dock activity. The foregoing concerns are purely speculative and are not supported by competent substantial evidence. In Mrs. Williams' case, she objects to obstruction of her "view." Although it was clearly established that the view from the Williams' home will be minimally affected by the two feet of plank width increase, an unencumbered horizon is not an environmentally protected right, and the largest part of the Moellers' dock is already in place across the protestants' "view" anyway. No measurable impact attributable to the addition of two feet of planking at the Moellers' dock is expected in front of the Causey or Williams properties.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and parties to this cause.
James E. Williams, Regina Williams, and Charles W. Causey have standing to maintain this action, contrary to the arguments of Respondent Moeller. The renewed motion to dismiss is denied.
Petitioners assert that the present permit application is barred by res judicata, or, alternatively, that the Final Order entered in the consolidated cases of Williams et al. v. Moeller, et al., DOAH Case Nos. 86-1095 and 86-1096, (See Finding of Fact 4, supra.) collaterally estops Respondents with respect to the findings and conclusions therein. Pertinent in that regard is some very specific language contained within the decretal portion of that Final Order to this effect:
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 . . ."
(p. 16, 0001430 Applicants' Exhibit 13(b)).
Also pertinent are the several rulings on exceptions to the Recommended Order contained within that Final Order, including those on page 7 thereof, which distinguished between agency review of a consent order and a permit application, and which also hold out to the Moellers the suggestion that they file just such a permit application as they have done in the present proceeding stating:
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.
Moreover, Petitioners failed to affirmatively demonstrate that the elements of res judicata or of collateral estoppel 1/ are present in this cause. The burden to affirmatively demonstrate those elements is upon the party asserting either doctrine.
While the protestants raise the spectre of a deluge of applicants attempting to "piggyback" larger docks upon otherwise exempt docks, it is equally ironic from the applicants' viewpoint that this proceeding involves an application for a dredge and fill permit which involves an existing exempt dock, a completion project for which no actual additional dredging or filling is required, and for which project the primary affirmative clear public interest factor offered is a conservation easement to further preclude dredging and filling for similar projects in the immediate vicinity.
DER has regulatory authority over the widening of the subject dock as such work constitutes an activity over surface waters. See, Section 403.913(1), Florida Statutes.
Section 403.918, Florida Statutes provides in pertinent part:
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 pubic 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.
In considering whether a project is in the public interest, Section 403.918(2)(a) establishes seven criteria which must be considered and balanced:
(a) 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.
[Emphasis supplied.]
Rule 17-4.242(1)(a), Florida Administrative Code, provides, in pertinent part:
No Department permit . . . shall be issued for any stationary installation which . . . is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
2. The proposed activity . . . is clearly in the public interest, and . . .
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 . . . . [Emphasis supplied.]
Rule 17-3.041(4)(i), Florida Administrative Code, places Florida Bay, this project's vicinity, within the Florida Keys Special Waters, designated as an Outstanding Florida Water. The waters of the project site are Class III waters and not exempt. See Rules 17-3.161(1) and 17-3.161(2)(c)44, Florida Administrative Code. Therefore, the water quality standards which apply to this project are those for Class III Surface Waters.
In short, to demonstrate entitlement to a dredge and fill permit, these applicants must provide DER with reasonable assurances that the project
(1) will not cause the applicable water quality standards to be violated and (2) will not be contrary to the public interest, and because the project is within an Outstanding Florida Waters, the applicants must show that the project is "clearly in the public interest."
Upon the facts as found supra, the applicants have provided DER reasonable assurances that the water quality standards will not be violated. See Section 403.918(1), Florida Statutes.
Rule 17-3.011(2), Florida Administrative Code, provides:
(12) Public interest shall not be construed to mean only those activities conducted solely to provide facilities to the general public. Private activities conducted for private purposes may also be in the public interest.
The impact of this project on the public health, safety or welfare will be a positive one.
The present 2 foot width of the dock poses a potential safety problem that will be remedied by widening it to 4 feet. See, Section 403.918(2)(a)l, Florida Statutes.
No endangered or threatened species will be impacted by this project. Any adverse impact attributable to the additional two feet of planking will be localized and more than offset by the beneficial impacts of the conservation easement, through which the Moellers will have relinquished the right to build up to four additional docks at the site. Compared to the effects of numerous docks at the site, the granting of this permit will have a net positive effect on the conservation of fish and wildlife. See, Section 403.918(2)(a)2, Florida Statutes.
This project will have no adverse affect on navigation or the flow of water and will not cause harmful erosion or shoaling. See, section 403.918(2)(a)3, Florida Statutes.
Although this project, in and of itself, may cause a slight and localized reduction in marine productivity, the net effect will be a positive one as a result of the automatic activation of the conservation easement if the permit is granted. The project also yields a net plus because the improved configuration of the dock enhances access to Florida Bay for recreational purposes. See, Section 403.918(2)(a)4, Florida Statutes.
The additional two feet of planking will be permanent in nature. The conservation easement will likewise be permanent in nature. See, Section 403.918(2)(a)5, Florida Statutes.
There are no historical or archeological resources that will be impacted by this project. See, Section 403.918(2)(a)6, Florida Statutes.
The current condition and relative value of functions currently being performed at the site are good, even though a docking facility has been in place for over a year. These functions will only be negligibly impacted. The site will be impacted less by this project than by up to four separate docks which would not require a permit were they to be built. See, Section 403.918(2)(a)7, Florida Statutes.
Considering the potential cumulative impacts of other projects, the exchange of an additional two feet of planking for the right to build as many as four docks at this site will result in an overall benefit to the marine environment in the project vicinity. See, Section 403.919, Florida Statutes.
The applicants having clearly demonstrated both reasonable assurances and clear public interest of the project, it would seem the permit, as appropriately conditioned, and dependent upon the conservation easement should be granted. However, Petitioners raise the novel legal argument that Section 380.0552(7), Florida Statutes (1986), either engrafts the standards of Rule 27F- 8.03, Florida Administrative Code, onto the DER in such a way as to cause that rule to become permitting regulations of DER, or, at a minimum, that Section 380.0552(7) is a clear legislative articulation of factors to be considered in determining whether a specific development in the Florida Keys Area of Critical Concern is in the public interest and Section 380.0552(7) therefore requires DER and other state agencies to conduct their regulatory activities consistent with the Principles for Guiding Development. Specifically, Petitioners cite Section 380.0552(7), Florida Statutes, and Rule 27F-8.03(4)(b)(4)(b),(e), and (f), Florida Administrative Code. 2/ The argument has been considered, and is without merit.
Section 380.031(18) defines "state land planning agency" as the Department of Community Affairs. Section 380.032 authorizes that agency to:
Exercise general supervision of the administration and enforcement of this act and all rules and regulations promulgated hereunder.
(2)(a) Adopt or modify rules to carry out the intent and purposes of this act. Such rules shall be considered with the provisions of this act.
Chapter 27F, Florida Administrative Code, is composed of rules adopted by that agency and implement its jurisdiction, not the jurisdiction of the Department of Environmental Regulation.
Therefore, upon the foregoing findings of fact and conclusions of law, it is recommended that DER enter a final order granting Respondents Charles and Julia Moeller dredge and fill permit number 44-128054-5 pursuant to the notice of intent to issue dated July 16, 1987, and the several restrictions therein.
DONE and RECOMMENDED this 13th day of June 1988, at Tallahassee, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June 1988.
13-14. Accepted but subordinate. Covered in part in FOF 14.
23-24. Covered in FOF 11-19, particularly 19.
25-26. Rejected as set out in FOF 19. Portions also are subordinate and unnecessary and mere argument of counsel.
29-34. Except as covered in FOF 2 and 20, rejected as cumulative to the facts as found or as mere recitation of testimony.
3-4. Covered in introductory material, FOF 3,4, 9, 11.
13-14. Covered in F0F 9.
15-16. Covered in F0F 12.
17. Covered in FOF 13. 18-19. covered in FOF 14.
20. Covered in FOF 14-15, and 17. 21-22. Covered in F0F 17.
23-25. Covered in FOF 18-19.
10-11. Covered in FOF 14 and 15.
12-13. Covered in FOF 17.
14-15. Covered in FOF 18.
James T. Hendrick, Esquire
