Judges: J. D. PARRISH
Agency: Department of Environmental Protection
Latest Update: May 11, 1989
Summary: The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.Marina entitled to permit as will not violate water quality standards and not contrary to public interests.
88-5535STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CANRAEL INVESTMENTS, INC., )
)
Petitioner, )
vs. ) CASE NO. 88-5535
) SUNRISE BAY HARBOUR, INC., & ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
) JACK KAYE & HARRIET KAYE, )
)
Petitioners, )
vs. ) CASE NO. 88-5536
) SUNRISE BAY HARBOUR, INC., & ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on February 23-24, 1989, in Fort Lauderdale, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
APPEARANCES
For Petitioner Canrael Investments,
Inc.: Mary F. Smallwood
Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.
101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301
For Petitioners Jack Kaye &
Harriet Kaye: Brion L. Blackwelder JACOBSON AND FINKEL
3363 Sheridan Street, Suite 204
Hollywood, Florida 33021
For Respondent Sunrise Bay Harbour,
Inc.: William Robert Leonard LEONARD & MORRISON
P.O. Box 11025
Fort Lauderdale, Florida 33339
For Respondent Department of
Environmental Regulation: Wayne L. Schiefelbein
Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 BACKGROUND AND PROCEDURAL MATTERS
This case began on October 26, 1988, when the Department of Environmental Regulation (Department) received a Petition for Formal Administrative Hearing filed by Petitioner Canrael Investments, Inc. (Canrael). The petition challenged the Intent to Issue which the Department had issued regarding a permit for Sunrise Bay Harbour, Inc. (Sunrise). The challenged permit would allow Sunrise to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. Canrael challenged the permit due to an ownership dispute regarding a strip of bulkhead located between Canrael property and the permit site. Canrael had previously sought and been given permits to construct a docking facility in the disputed area. Canrael's petition, however, alleged that the project had not been built and that the permits had expired (see Canrael petition, paragraph 9). Canrael maintained that Sunrise's proposed "D" dock would adversely affect Canrael's access to its property. Petitioners Jack Kaye and Harriet Kaye (Kaye), owners of property adjoining the Sunrise project, also challenged the permit.
The case was forwarded to the Division of Administrative Hearings for formal proceedings on November 4, 1988.
At the hearing, Canrael withdrew its objection to the issuance of the permit and elected to abandon its petition against Sunrise. Consequently, Canrael offered no evidence. Canrae1 indicated for the record that it had agreed to transfer its riparian, littoral and navigation rights in the subject property to Sunrise and that Canrael did not intend to build the project for which it had received permits. Sunrise presented the testimony of the following witnesses: Leonard Lawrence Nero, Ronald D. Stroud, accepted by the parties as an expert in the design and operation of marina facilities in South Florida, Gary H. Kroeger, and Michael Sapusek. Sunrise's exhibits numbered 1 through 5 were admitted into evidence. The Department offered the testimony of Leonard Lawrence Nero who was accepted by the parties as an expert in water quality assessment, marine biology and habitat assessment, dredge and fill permitting procedures/regulations, impacts of dredge and fill projects on water quality and biological resources, and luxury boat handling and navigation. The Department's exhibits numbered 1 and 2 were admitted into evidence.
The Kayes testified in their own behalf and offered the testimony of Helen Georges. The Kayes' exhibits numbered 1 through 4 were admitted into evidence. The transcript of the proceedings was filed with the Division of Administrative Hearings on March 28, 1989.
After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.
STATEMENT OF THE ISSUES
The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
On or about February 3, 1988, Sunrise submitted an application to the Department for permission to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. The dock facilities to be built include four sections designed to accommodate yachts 70 feet or longer in length.
The proposed marina would be located in a body of water known as Coral Bay. The bay opens onto the Intracoastal Waterway at the Sunrise Boulevard bridge. This marina is subject to the Department's permitting requirements under Chapter 403, Florida Statutes, and Chapter 17-12, Florida Administrative Code.
The proposed marina does not require dredging. The only filling would be incidental to the placement of the pilings (supporting the dock system) and the rip rap (recommended by the Department to enhance fish habitation).
Coral Bay is a Class III water which currently meets water quality standards for such classification. The water body east of the proposed marina is classified as an Outstanding Florida Water.
On or about October 12, 1988, the Department issued an Intent to Issue the permit requested by Sunrise. The notice of the Intent to Issue was published on October 24, 1988. Thereafter, petitioners timely filed challenges to the proposed project.
As specific conditions of the permit, the Department required the following provisions which are pertinent to the Kaye challenge:
The required 300 cubic yards of natural limestone 1-3' diameter rip rap shall be placed at the toe of the bulkhead before the construction of the marginal pier.
No sewage shall be discharged into the marina basin or other waters of the State.
Sewage pump out facilities shall be provided, used and at all times maintained and operable. A permit is required from Broward County and shall be acquired to validate this permit.
An effective means of turbidity control, such as, but not limited to, turbidity curtains shall be employed during all operations that may create turbidity so that
it shall not exceed 29 Nephelometric Turbidity Units above natural background value. Turbidity control devices shall remain in place until all turbidity has subsided.
* * *
8. Manatee Construction Conditions (copy enclosed) shall be implemented and in effect and Manatee Caution Signs and Educational Displays, per enclosed directive, shall be implemented.
The proposed marina will occupy the southern half of Coral Bay. The Kaye property is north of the proposed site. Further north are a cooperative of townhome units and a yacht club. Access to the bay and to the Intracoastal Waterway is afforded these properties via a channel 75 feet in width which divides the bay waters. The proposed marina would not intrude into the access channel.
There is an existing concrete seawall which extends vertically along the shoreline of the subject property. The parking and structures to be built incidental to the marina have been designed to require run off or drainage landward and not into Coral Bay.
The water depth in the proposed marina is approximately 8 to 9 feet except along the shoreline where the depth is approximately 5 feet. It is not anticipated that the operation of the yachts will cause a significant disturbance of the marina basin floor.
10 The tidal flushing in Coral Bay is sufficient to remove incidental levels of pollutants which may be discharged. Therefore, the proposed marina will not have a significant impact on water quality. The incidental pollutants which may be expected are such items as paint leaching or minor fuel spills. Since the marina will not have fueling facilities and since sewage pump out facilities are mandated, it is not anticipated that these forms of waste will be significant to this project.
The proposed marina will not have an adverse effect on the flow of water in the basin nor should it cause erosion or sedimentation. Further, it is not anticipated that the marina will adversely affect the water quality in the Outstanding Florida Water near the site.
Although no water testing was performed at this site, the biota appears healthy. A number of fishes actively forage in the waters and algae can be observed down to a depth of 6 feet. Consequently, the water is clear enough to support growth to that depth.
A number of birds feed and rest in the subject area. The docks are likely to displace the birds' direct access to feeding areas but it is anticipated that the rip rap will increase the surface areas available for organism development and thereby enhance the environment for fishes. While the docks will result in an estimated 16,700 square feet of shadowing of open water, given the benefits of the required rip rap, the overall impact should not be negative.
Construction began on the Sunrise Boulevard bridge approximately three years ago. Manatees have not been observed at the proposed site since the work
began. However, because it is known that manatees frequented this area before the construction and may again, manatee construction conditions and manatee signage provisions have been required by this permit. The construction provisions will require Sunrise to cease all construction upon the sighting of a manatee until such time as the animal vacates the area. Further, the signage provisions will require Sunrise to display warnings and to inform all marina users of the possibility of manatees in the area. Immediate notification to the appropriate authorities is required in the event a manatee is injured.
It is anticipated that the proposed marina will displace transient use of Coral Bay. This loss when weighed against the benefits of having a docking facility available to yachts (with the amenities of power and fresh water) does not establish a negative recreational impact on the proposed site.
The 75 foot channel is sufficient for safe passage to and from the Intracoastal Waterway and the properties owned by Sunrise and the Kayes.
The proposed marina will not adversely affect recreational use of the properties.
The project is intended to be of a permanent nature.
The project will have no effect on significant historical and archaeological resources.
There are no outstanding permits which, when reviewed in connection with this project, would establish that the water quality will be adversely affected by the proposed marina.
It is not anticipated that the proposed marina, subject to the general and specific conditions of the permit, will adversely affect the public health, safety, or welfare. The negative affect to the property of others is minimal given the overall enhancement to the recreational and biological environments.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
The criteria for granting or denying a permit of the type requested in this case are found in Section 403.918, Florida Statutes. That section provides, in pertinent part:
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 of 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.
Section 403.919, Florida Statutes, requires the Department, in deciding whether to grant or deny a permit for an activity which will affect waters, to consider:
The impact of the project for which the permit is sought.
The impact of projects which are existing or under construction or for which
permits or jurisdictional determinations have been sought.
The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
Rule 17-12.070, Florida Administrative Code, provides, in pertinent part:
In accordance with Section 403.918(1), F.S., no permit shall be issued unless the applicant has provided the department with reasonable assurance based up plans, test results or other information that the proposed dredging or filling will not violate water quality standards.
No permit shall be issued unless the applicant provides the department with reasonable assurance based on plans, test results or other information that the project is not contrary to the public interest in accordance with Section 403.918(2), F.S.
* * *
(4) A permit may contain specific conditions reasonably necessary to assure compliance with Section 403.918, F.S.
In this case, Sunrise has established that the proposed marina will not violate water quality standards. Further, Sunrise has shown that, based upon the data known and the reasonable expectations surrounding the intended uses, the proposed marina is not contrary to the public interest. The specific
conditions required for this project adequately offset any adverse affect anticipated to result from this project.
It must be noted that the Kayes have not presented any facts which refute the evidence presented by Sunrise and the Department. The personal desire to have the property remain undeveloped and available for the general public's use does not establish that the proposed project will adversely affect the water quality of Coral Bay. Nor does it show that the proposed project is contrary to the public interest.
The Kayes have also argued that, as a matter of law, the permit may not issue since the Department failed to consider the impact of another project for which a permit had been sought and approved within a portion of the same location as the Sunrise marina. Any rights associated with this "other" permit, the Canrael permit, were abandoned by Canrael at the outset of this hearing. Further, according to Canrael's own pleading in this cause, such permit had expired. Obviously, the Canrael permit was not considered since it was never contemplated that both permitted projects would be built. The ownership dispute regarding the area encompassed by the Canrael permit was rendered moot when Canrael elected to abandon its claim. For purposes of this case, Sunrise has established it has the only viable permit for the subject property. The statute does not require the Department to consider the impact of all permits which may have been issued but which have expired.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That the Department of Environmental Regulation enter a final order approving the permit for Sunrise Bay Harbour, Inc.
DONE and RECOMMENDED this 11th day of May, 1989, in Tallahassee, Leon County, Florida.
JOYOUS D. PARRISH
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1989.
APPENDIX
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER KAYE:
To the extent that paragraph 1 concludes the Department did not consider the Canrael permit in evaluating the Sunrise permit, such fact is
accepted. However, under the facts of this case, the Department was not required to consider such permit since it was not contemplated that both projects could or would be built. The Canrael permit had expired prior to October 26, 1988, and Canrael formally abandoned its interest, if any, in the permit at the hearing in this cause.
Paragraph 2 is rejected as argument, irrelevant or immaterial to the issues of this case.
Paragraph 3 is rejected as contrary to the weight of the credible evidence.
Paragraph 4 is accepted.
Paragraph 5 is rejected as contrary to the weight of the credible evidence.
The first two sentences of paragraph 6 are accepted but are irrelevant. The last sentence is rejected as contrary to the weight of the evidence or argument.
Paragraph 7 is accepted.
Paragraph 8 is rejected as argument or contrary to the weight of the evidence presented.
Paragraph 9 is rejected as argument and is either contrary to the weight of the evidence presented or unsupported by evidence in this cause.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:
Paragraphs 1 through 23 are accepted.
With the deletion of the phrase "both lawful and unlawful," paragraph
24 is accepted.
Paragraphs 25 through 29 are accepted.
Paragraph 30 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues in this case.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SUNRISE:
Paragraph 1 is accepted.
Paragraph 2 is accepted as stipulated by the parties at the outset of this case.
Paragraph 3 is accepted. The parties did not oppose the tender of Mr. Nero in the categories listed.
Paragraphs 4 through 7 are accepted.
To the extent that paragraph 8 states this proposed project is within Class III waters, such paragraph is accepted. However, to the east of Coral Bay is a body listed as Outstanding Florida Water. Consequently any suggestion otherwise is rejected as contrary to the facts of this case.
Paragraphs 9 through 22 are accepted.
Paragraph 23 is accepted.
Paragraph 24 is rejected as not supported by the evidence presented in this cause.
Paragraph 25 is accepted but is unnecessary irrelevant or immaterial.
Paragraph 26 is accepted.
Paragraph 27 is rejected as irrelevant, immaterial, or unnecessary to the resolution of issues in this case.
Paragraph 28 is accepted but is irrelevant immaterial, or unnecessary to the resolution of issues in this case.
Paragraph 29 is rejected as contrary to the weigh of the evidence. Manatees have not been seen since the bridge construction began approximately three years ago. Exactly when, prior to that, a manatee was within Coral Bay is not disclosed by this record.
Paragraph 30 is rejected as irrelevant.
Paragraph 31 is rejected as irrelevant.
Paragraphs 32 and 33 are rejected as irrelevant.
COPIES FURNISHED:
For Petitioner Canrael:
Mary F. Smallwood
Ruden, Barnett, McClosy, Smith, Schuster & Russell, P.A.
101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301
For Petitioners Kaye:
Brion L. Blackwelder JACOBSON AND FINKEL
3363 Sheridan Street, Suite 204
Hollywood, Florida 33021
Jack and Harriet Kaye 1100-1120 Seminole Drive
Fort Lauderdale, Florida 33304
For Sunrise Bay:
William Robert Leonard Leonard & Morrison
P.O. Box 11025
Fort Lauderdale, Florida 33339
For DER:
Wayne L. Schiefelbein Assistant General Counsel Department of Environmental Regulation
Twin Tower Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson General Counsel
2600 Blair Stone Road Tallahassee, FL 32399-2400
Docket for Case No: 88-005535
Orders for Case No: 88-005535
| Issue Date |
Document |
Summary |
|
May 11, 1989 |
Recommended Order
|
Marina entitled to permit as will not violate water quality standards and not contrary to public interests.
|
