STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE & LUCIANN NIEBLER )

)

Petitioners, )

)

and LOWER MATECUMBE KEY )

ASSOCIATION, INC., )

)

Intervenor, )

vs. ) CASE NO. 89-2731

)

PLANMAC COMPANY, INC. and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION )

)

Respondent. )

) GEORGE A LAMARCA )

)

Petitioners, )

)

and LOWER MATECUMBE KEY )

ASSOCIATION, INC., )

)

Intervenor, )

vs. ) CASE NO. 89-2732

)

PLANMAC COMPANY, INC. and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION )

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled consolidated cases on October 26-27, 1989, in Tavernier, Florida.

APPEARANCES

For Petitioners, Nicholas W. Mulick, Esquire Lawrence & Luciann Beckmeyer & Mulick, P.A. Niebler and George 88539 Overseas Highway

A. Lamarca: Tavernier, Florida 33070

For Intervenor, Michael Bier, President Lower Matecumbe Lower Matecumbe Key

Key Association, Inc.: Association, Inc.

110 Bayview Drive Islamorada, Florida 33036

For Respondent, William J. Roberts, Esquire Planmac Company, Inc.: Roberts & Egan, P.A.

217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302

For Respondent, Vivian F. Garfein, Esquire Department of Pamela P. Garvin, Esquire

Environmental Department of Environmental

Regulation: Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

Whether Respondent, Planmac Company, Inc., is entitled to the modification of a previously permitted boat docking facility in a man-made basin on Lower Matecumbe Key, Monroe County, Florida.

PRELIMINARY STATEMENT

On March 12, 1985, Respondent Planmac filed an application with the Department of Environmental Regulation for a permit to construct a marina in a man-made basin, known as Captain's Cove, on Lower Matecumbe Key, Monroe County, Florida. Following timely objection to the application by Mr. and Mrs. Clyde Townsend the matter was referred to the Division of Administrative Hearings for formal proceedings under Section 120.57(1), Florida Statutes. The case number assigned to that proceeding by the Division of Administrative Hearings is Case Number 86-0107 and is styled Townsend v. Planmac and Department of Environmental Regulation.

Following the formal hearing, a Recommended Order was issued by the Hearing Officer on April 25, 1986, which made findings of fact and recommended that the application be approved, subject to conditions. On June 3, 1986, the Department of Environmental Regulation issued a Final Order which ordered that the permit be issued with the conditions recommended by the Recommended Order. Thereafter, Permit #441008425 was issued to Planmac by the Department of Environmental Regulation for the construction of a 52-slip docking facility. Although no construction had begun on the docking facility at the time of the formal hearing, Permit #441008425 was still valid.

After Permit #441008425 was issued to Planmac for the construction of 52 boat slips, an application was filed by Tormac Corporation for 40 additional boat slips to be located on the property adjacent to the Planmac site. Planmac and Tormac are owned by the same individual.

Planmac was unable was unable to gain title to land it needed to construct the project as originally permitted. Consequently, it filed the subject application seeking a modification to Permit #441008425. The application for modification reduces the projected number of boat slips from 52 to 48. Forty of the 48 slips would be at a location adjacent to the originally permitted location that was the subject of the Tormac application. The Tormac application was withdrawn before final action was taken on the application by DER and before application for modification was filed. The remaining 8 slips of the reconfigured project would be in the originally permitted location.

Following staff review of the application, the Department of Environmental Regulation issued a notice of intent to grant the application for modification of Permit #441008425. Thereafter, Petitioners, Lawrence and Luciann Niebler, timely filed a Petition for Administrative Hearing which was assigned DOAH Case Number 89-2731. Petitioner, George A. Lamarca, also filed a timely Petition for Administrative Hearing which was assigned DOAH Case Number 89-2732. Lower Matecumbe Key Association, Inc. was permitted to intervene on behalf of the Petitioners in both Case Number 89-2731 and Case Number 89-2732, which were consolidated.

At the formal hearing, Planmac presented the testimony of one witness, William Hunt, and introduced three documentary exhibits which were accepted into evidence. Mr. Hunt was accepted as an expert witness in the fields of marine biology and dredge and fill permitting. The Department of Environmental Regulation presented the testimony of one witness, David Bishoff, and introduced two documentary exhibits which were accepted into evidence. Mr. Bishoff was accepted as an expert witness in the fields of marine biology and the impacts of dredge and fill projects on water quality. Petitioners presented the testimony of Luciann Niebler, Jerry Pucci, and Curtis Kruer and introduced six-documentary exhibits which were accepted into evidence. A seventh exhibit was marked (as Petitioners' Exhibit 2), but it was withdrawn since it would have been a duplicate of an exhibit previously admitted. Mr. Kruer was accepted as an expert in the fields of the review of dredge and fill permits and the impact of dredge and fill projects on the marine environment. Mr. Michael Bier, President of Lower Matecumbe Key Association, Inc., testified on behalf of Intervenor.

Official recognition was taken of the Recommended Order entered in DOAH Case Number 86- 0107 styled Townsend v. Planmac and Department of Environmental Regulation, and the subsequent Final Order entered by the Department of Environmental Regulation.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings are in the appendix to this Recommended Order. Intervenor did not file a proposed recommended order.

FINDINGS OF FACT

1. On March 12, 1985, Planmac Company, Inc. (Planmac) filed a request with the Florida Department of Environmental Regulation (DER) for a dredge and fill permit to construct a boat docking facility consisting of 52 slips in a man-made basin, known as Captain's Cove, located on Lower Matecumbe Key, Monroe County, Florida.

   
   

2. On October 3, 1985, DER filed a Notice of Intent to Issue the requested permit subject to certain specified conditions.

   
   

3. A timely challenge to the permit was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was styled Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107.

   
   

4. As a result of the formal hearing in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, a Recommended Order was submitted to DER which made findings of fact, concluded that all permitting

   criteria had been met, and recommended that the application be granted subject to certain conditions. Thereafter, on June 3, 1986, DER issued a Final Order which ordered that the application for the permit be granted subject to the recommended conditions. No appeal was taken from the Final Order.

   
   

5. On June 18, 1986, DER issued to Planmac Permit #441008425, which authorized Planmac, consistent with drawings and specifications attached to the Permit, to:

   
   

   Construct two (2) 5' x 248' docks, each

   with fourteen (14) 3' x 40' finger piers and twelve (12) associated mooring piles, providing a total of fifty-two

   (52) boat slips; and install approximately 590 linear feet of riprap revetment requiring the deposition of approximately 300 cubic yards of rock boulders landward and waterward of MHW, in a man-made basin (Class III Waters), an artificial, navigable waterbody contiguous to Florida Bay in Section 21, Township 64 South, Range 36 East, Monroe County.

   
   

6. The following specific conditions were attached by DER to Permit #441008425:

   
   

   1. The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense.

   2. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides.

   3. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into

      the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium.

   4. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document.

   5. A portable sewage pumpout wagon shall be provided at the marina.

      Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction.

   6. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equipment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction.

   7. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin.

   8. No fuel facilities nor storage shall be allowed at the project.

   9. All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove.

   10. Use of boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited.

   11. Living aboard any boat docked at the marina is prohibited at all times.

   12. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility.

   13. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap.

   14. The Marathon Department of Environmental Regulation office shall be notified 48 hours prior to the commencement of work.

   15. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional

       language that "this precaution exists throughout the length of the canal channel during ingress and egress".

   16. At least two trash receptacles shall be provided on each of the two main walkway piers; these receptacles shall be routinely maintained and emptied.

   17. Prior to dockage use by boats, marker buoys shall be established around all vegetated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Marathon DER office shall meet to discuss acceptable locations for these markers.

   18. The project shall comply with applicable State Water Quality Standards, namely:

       17-3.051 - Minimum Criteria for All

       Waters at All Times and All Places.

       17-3.061 - Surface Waters: General

       Criteria.

       17.3.121 - Criteria - Class III

       Waters - Recreation, Propagation and Management of Fish and

       Wildlife: Surface Waters.

       
       

7. After Permit #441008425 was issued to Planmac for the construction of

   52 boat slips, an application was filed by Tormac Corporation for 40 additional boat slips to be located on the property adjacent to the Planmac site. Tormac Corporation and Planmac are owned by the same individual. The Tormac application was subsequently withdrawn prior to final action being taken on the application and prior to Planmac filing the subject application for modification.

   
   

8. On December 15, 1988, Planmac filed the application for modification that is the subject of this proceeding. A reconfiguration of the project was necessary because Planmac had been unable to obtain title to a portion of the bay bottom over which it had originally planned to construct the project.

   
   

9. Permit #441008425 was modified once previously. The prior modification extended the expiration date for the permit from June 15, 1988, to June 18, 1991. At the time of the final hearing, Permit #441008425 was still in effect.

   
   

10. The proposed modification will reduce the number of boat slips from 52 to 48. Eight of the reconfigured slips will be located over the originally permitted site. The forty remaining slips will be relocated over the former Tormac site, which is immediately adjacent to, and west of, the originally permitted site.

11. The following findings of fact, made by the Hearing Officer in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, are pertinent to the proposed modification:

    
    

    * * *

    1. Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper that the controlling depth at the mouth.

    2. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW.

    3. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habit

       for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species.

    4. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin

    layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevalent. As

    sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria.

    
    

12. DER, following staff review of the application for modification, issued its Intent to Issue on April 21, 1989. In considering the proposed modification, DER staff assumed that Captain's Cove was a closed system whose waters received no cleansing exchange with Florida Bay. Most of the oxygen replenishment and water purification that takes place within the cove occurs through biological activities.

    
    

13. The Intent to Issue dated April 21, 1989, advised that DER intended to issue the requested permit modification. The reconfigured project may be described in the following language taken from the Intent to Issue:

    
    

    The applicant, Planmac Company, Inc., applied on December 15, 1988, to the Department of Environmental Regulation for a permit modification to construct a marina facility consisting of a 280' x 5' wide access walkway, two (2) 160' x

    5' wide main piers with twenty (20) 35'

    x 3' finger piers, two (2) 81' x 5' wide

    main piers with eight (8) 40' x 3' finger piers, providing a total of 48 boat slips, and to install approximately

    300 cubic yards of limerock boulders in a man-made basin (Class III Waters), an artificial waterbody in Section 21, Township 64 South, Range 36 East, Monroe County.

    
    

14. The proposed modification is over an area of very sparsely vegetated bottom with water depths between 19 and 27 feet. The reconfigurated project will shade approximately 4,000 square feet less bottom area than the originally permitted project. The reconfigurated project will not exacerbate or contribute to a violation of DER's water quality criteria.

    
    

15. The reconfigurated design, as compared to the originally permitted project, will present easier ingress and egress from the docking area and will cause less interference with boat traffic. The reconfigurated design will not affect the manatee that are occasionally sighted in Captain's Cove any differently than the presently permitted design.

    
    

16. The Intent to Issue dated April 21, 1989, incorporates all eighteen previously attached conditions to the permit and adds the following additional conditions:

    
    

    1. No docking is permitted waterward of the terminal finger piers on any of the four (4) main piers to prevent use of adjacent owner's bay bottom. These four (4) terminal docks shall have permanent hand rails constructed and maintained along their waterward edge to further discourage boat mooring.

    2. A draft of a legally binding agreement, such as a deed restriction shall be submitted to the Fort Myers DER office for review, modification as necessary, and/or approval within thirty

       (30) days of permit modification issuance. An approved document shall be recorded into the public records of Monroe County within sixty (60) days of approval by the Department. This agreement shall prohibit any further dock construction on the Planmac/Tormac properties exceeding that authorized by this permit modification. This document shall also prohibit in perpetuity the installation of fueling facilities and boat maintenance facilities, and shall prohibit the mooring of liveaboard vessels throughout the life of the facility. Construction shall not commence until proof of recording has been received by the Fort Myers DER office.

    3. The location and configuration of the docks and access walkways shall be modified from the drawings stamped June 18, 1986, to those received December 15, 1988 and attached hereto.

    
    

17. The conservation easement, which is incorporated as a condition to the issuance of the modification, has a positive effect because it prohibits further dockage on the Planmac or Tormac properties. Since docks over which DER has no permitting authority could have been placed on these properties, this easement will prevent future unregulated docking there.

    
    

18. The reconfiguration of the project and the inclusion of the adjacent lands present no significant environmental concerns that were not present when the original project was permitted.

    
    

19. After the issuance of the Notice of Intent by DER on April 21, 1989, the respective Petitioners filed timely challenges to the application. The Petitioners contend that the application constitutes a major modification of the previously permitted project and seek to challenge the project on many of the same grounds that were litigated in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. The modifications proposed by the application that is the subject of this proceeding was processed by DER as a routine, minor modification.

    
    

20. As a result of Petitioners' challenges, this proceeding was held. The Petitioners and Intervenor were not permitted to relitigate those issues that had been resolved by Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107.

    
    

    CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes

    
    

22. Pursuant to Section 403.913, Florida Statutes, the proposed modification to the Planmac project requires a modification of Permit #441008425.

    
    

23. Modifications to dredge and fill permits are authorized by Rule 17- 312.100, Florida Administrative Code, which provides as follows:

    
    

    The Department will determine whether the requested modification is minor or major based on the magnitude and nature of the proposed change and potential for environmental effects different from those previously determined for the project.

    
    

24. Planmac and DER established that the requested modification to the permitted project presented no new significant environmental concerns and that the application was properly treated by DER as a minor modification as opposed to a major modification or as a new application. DER's interpretation of its own rules to determine whether this application may be treated as a minor modification is given great deference. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986).

    
    

25. The doctrine of collateral estoppel bars the relitigation of those issues determined by Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86- 0107. Castro v. Sun Bank of Bal Harbour, N.A., 370 So.2d 392 (Fla. 3d DCA 1979).

    
    

26. The only remaining issue is whether the applicant has provided reasonable assurances that the modification to the existing permit will not cause a violation of state water quality standards, will not interfere with the conservation to marine resources, and will not create a hazard to navigation. Chapters 253 and 403, Florida Statutes, Rules 17-3, and 17-4, Florida Administrative Code.

    
    

27. The applicant has provided the reasonable assurances required of it. The proposed modification will present no significant environmental concerns that were not present, and resolved, when the original project was permitted.

DONE AND ENTERED this 24th day of January, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASES 89-2731 AND 89-2732

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 8 and 10 of the Recommended Order. The proposed finding that the modification was a major modification is rejected as being contrary to the conclusions reached.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 11 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 12 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 11 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unsubstantiated by the evidence.

7. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made.

8. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached.

9. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached and as being beyond the scope of the proceedings.

10. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached.

11. The proposed findings of fact in paragraph 11 are rejected as being contrary to the greater weight of the evidence.

12. - 14. The proposed findings of fact in paragraphs 12 - 14 are rejected as being unnecessary to the conclusions reached and as being beyond the scope of the proceedings.

1. The proposed findings of fact in paragraph 15 are rejected as being contrary to the greater weight of the evidence.

2. The proposed findings of fact in paragraph 16 are rejected as being contrary to the findings reached.

The following rulings are made on the proposed findings of fact submitted on behalf of Planmac.

1. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence.

2. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 14 of the Recommended Order.

3. The proposed findings of fact in paragraph 11 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 14 of the Recommended Order.

5. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 17 of the Recommended Order.

6. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 17 of the Recommended Order.

7. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached.

8. The proposed findings of fact in paragraph 16 are adopted in material part by paragraphs 11 and 14 of the Recommended Order.

9. The proposed findings of fact in paragraph 17 are adopted in material part by paragraph 18 of the Recommended Order.

10. The proposed findings of fact in paragraph 18 are adopted in material part by paragraph 17 of the Recommended Order.

The following rulings are made on the proposed findings of fact submitted on behalf of the Department of Environmental Regulation.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 5 and 10 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 16 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 14 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 14 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 15 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are adopted in material part by paragraphs 15 and 18 of the Recommended Order.

8. The proposed findings of fact in paragraph 8 are adopted in material part by paragraph 17 of the Recommended Order.

COPIES FURNISHED:

Vivian F. Garfein, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Nicholas Mulick, Esquire Beckmeyer, Mulick, & Wolkowsky 88539 Overseas Highway

Tavernier, Florida 33070

George A. LaMarca, Esquire LaMarca & Landry, P.C.

700 Wet Towers 1200 - 35th Street

West Des Moines, Iowa 50265

William J. Roberts, Esquire Roberts & Egan, P.A.

Post Office Box 1386 Tallahassee, Florida 32302

Michael Bier, President

Lower Matecumbe Key Asso., Inc.

110 Bayview Drive Islamorada, Florida 33036

Dale H. Twachtman, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-002731

Orders for Case No: 89-002731