STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROL LEE SELLARS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4502

) CAYO COSTA ISLAND PARTNERSHIP ) and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on October 24, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings. The parties, witnesses, court reporter, and Ms.

Trescott attended the hearing in Ft. Myers. Ms. Smallwood, Mr. Chaves, and Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Barbara Mathews Trescott

Pepper Law Firm

1505 Southeast 40th St. Cape Coral, Florida 33904

For Applicant: Mary F. Smallwood

Ruden, Barnett

Post Office Box 10888 Tallahassee, Florida 32302

For Department: John Chaves

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.

PRELIMINARY STATEMENT

By letter dated June 15, 1994, the Department of Environmental Protection informed Cayo Costa Island Partnership that the proposed installation of a

single-family dock, as described in its application, was exempt from the need for a wetland resource permit, under Rule 17-312.050(1)(h), Florida Administrative Code.

By undated petition, Carol Lee Sellars requested a hearing.

At the hearing, Cayo Costa called two witnesses and offered into evidence one exhibit. The Department called no witnesses and offered into evidence one exhibit. Ms. Sellars called one witness and offered into evidence 22 exhibits. All exhibits were admitted except Ms. Sellars' Exhibits M, N, O, and V, which were proffered.

The transcript was filed November 10, 1994. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral.

   
   

2. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals.

   
   

3. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded.

   
   

4. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area.

   The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound.

   
   

5. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate.

   
   

6. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock.

   
   

7. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure."

   
   

8. After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr.

   Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock.

   
   

9. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road.

   
   

10. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive.

    
    

11. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13,

    
    

    1994.

    
    

12. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court.

    
    

13. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction.

    
    

14. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards.

    
    

15. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

17. Rule 17-312.050(1)(h) provides that an exemption from permitting applies to the Construction of private docks in artificially created waterways (as defined in Section 17- 312.050(1)(g)) where construction will not violate water quality standards, impede navigation, or adversely affect flood control.

    
    

18. Rule 17-312.050(1)(g) defines an "artificially created waterway" as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems.

    
    

19. The proposed activity meets the requirements of the exemption set forth in Rule 17-312.050(1)(h).

    
    

20. Based on the above-stated findings and conclusions, it is unnecessary to address the standing of Petitioner or whether the proposed activity is also exempt from permitting under Rule 17-312.050(1)(d).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner.

ENTERED on November 22, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on November 22, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

A-C: rejected as not findings of fact.

A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance.

A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence.

Rulings on Cayo Costa's Proposed Findings

1-10: adopted or adopted in substance. 11-12: rejected as subordinate.

13-15: adopted or adopted in substance.

16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance.

32-33: rejected as irrelevant.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Barbara Mathews Trescott Pepper Law Firm

1505 S.E. 40th St.

Cape Coral, FL 33904

Mary F. Smallwood Ruden, Barnett

P.O. Box 10888 Tallahassee, FL 32302

John Chaves

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-004502

Orders for Case No: 94-004502