STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI BEACH ROD AND )

REEL CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3708

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, J. D. Parrish, held a video teleconference hearing in the above-styled case on December 9, 1996, with the parties appearing in Miami and Tallahassee.

APPEARANCES

For Petitioner: Stephen E. Tunstall, Esquire

Stephen E. Tunstall, P.A.

2701 Southwest LeJeune Road, Suite 410 Coral Gables, Florida 33134

For Respondent: Jeffrey Brown

Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a consent to use sovereign submerged lands.

PRELIMINARY STATEMENT

This case began on July 1, 1996, when the Department of Environmental Protection (Department or DEP) gave notice of its intent to deny the consent to use sovereign submerged lands for the activity proposed by Petitioner. On or about October 20, 1995, Petitioner, Miami Beach Rod and Reel Club, Inc. (MBRRC), applied for an environmental resource permit and requested authorization to use sovereign submerged lands in order to construct two finger piers and to install twelve mooring piles for its private yacht club.

The Department’s denial of the application cited provisions of Rules 18-18.006 and 18-21.004, Florida Administrative Code, and alleged:

1. the construction of the activity is inconsistent with the management policies, standards and criteria of sections(s) 18-

   21.004 and 18.006, F.A.C. The applicant has not provided reasonable assurance that the activity will be “not contrary to the public interest,” will maintain essentially natural conditions, will not cause adverse impacts to fish and wildlife resources or public recreation or navigation, and will not interfere with the riparian rights of adjacent property owners. In addition, the project is inconsistent with the goals and objectives of the “Conceptual State Lands Management Plan” adopted by the Board of Trustees on March 17, 1981.

   
   

2. the construction of the activity is inconsistent with Section of [sic] 18-18.006, F.A.C., in that no further use, sale, lease or transfer of interest in sovereignty lands in the preserve shall be approved or consummated by the Board of Trustees, except upon a showing of extreme hardship on the

part of the applicant and a determination by the Board of Trustees that such sale, transfer or lease is in the public interest.

Thereafter, on July 17, 1996, the Petitioner timely filed a petition for administrative proceeding. Such petition contested the proposed denial and argued that leasing the sovereign submerged land “will clearly [sic] it be in the public interest and the inability to lease the sovereign submerged land would constitute an extreme hardship for the Miami Beach Rod and Reel Club."

The case was forwarded to the Division of Administrative Hearings for formal proceedings on August 8, 1996. By notice entered September 17, 1996, the case was scheduled for hearing.

At the hearing Petitioner presented testimony from the following witnesses: Craig Grossenbacher, Susan Markley, Suzan Baker, Stephen Tunstall, Larry Leibowitz, and David Ettman. Petitioner’s exhibits numbered 1 through 4 have been admitted into evidence.

Respondent offered testimony from Donald Keirn. Respondent’s exhibits numbered 2 and 4 were admitted into evidence.

The transcript in this matter was filed on December 30, 1996. Thereafter Petitioner requested leave to late-file a proposed recommended order. Such request has been granted.

Petitioner’s proposed recommended order was filed on February 18, 1997. All proposed orders have been considered in the preparation of this order.

FINDINGS OF FACT

1. MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995.

2. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island.

3. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront.

4. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation

   of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking.

5. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed.

6. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers.

7. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements.

8. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP.

9. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme

   hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute.

10. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property.

11. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner.

12. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property.

13. The Petitioner’s property is a nonconforming use in a residential area.

14. The term “property owners in the area” has been construed to mean the BBAP.

15. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property

    owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP.

16. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest.

17. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality.

18. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation.

19. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading.

20. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project.

21. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met.

22. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic.

23. The proposed project would result in environmental costs through the loss of resources and increased turbidity.

24. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries.

25. The proposed project would provide no social benefits different from those presently provided by the existing facility.

26. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.

    CONCLUSIONS OF LAW

    
    

27. The Department is delegated the responsibility of enforcing the rules of the Board of Trustees for the purpose of proprietary authorizations on sovereign submerged lands in conjunction with applications for environmental resource permits. See Rule 18-21.0051, Florida Administrative Code.

28. As an applicant for authorization to use sovereign lands, the Petitioner bears the ultimate burden of persuasion to establish its entitlement throughout all proceedings, of whatever

    nature, until such time as the Department takes final agency action. Cordes v. Department of Environmental Regulation, 582 So. 2d 652, 654 (Fla. 1st DCA 1991) (citing Department of Transportation v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981)).

29. Petitioner’s proposed project requires a lease of

    
    

    sovereign submerged lands which must be approved as set forth in Rule 18-18.006, Florida Administrative Code.

30. Because the proposed project is located within the BBAP, it can not be approved “except upon a showing of extreme hardship on the part of the applicant and a determination . . . that such sale, transfer or lease is in the public interest.” Section 258.397(3)(a), Florida Statutes (1995).

31. Criteria for projects within the BBAP are different from those for other projects located on other sovereign submerged lands, particularly with respect to the “extreme hardship” provision. Rule 18-18.006(3), Florida Administrative Code, provides in pertinent part:

    (b) There shall be no further use, sale, lease, or transfer of interests in sovereignty submerged lands unless an applicant affirmatively demonstrates sufficient facts to support a finding by the board that:

    1. An extreme hardship exists for the applicant at the time the application is filed; and

    2. The use, sale, lease, or transfer of interest and the project planned in conjunction with the use, sale, lease, or transfer of interest is in the public interest; and

    3. The project planned in conjunction with the use, sale, lease, or transfer of interest is consistent with these rules and management plans when developed for the preserve; [emphasis added.]

    
    

    This project, like projects located within other aquatic preserves requires an affirmative showing of “public interest.” Rule 18-18.006(3), Florida Administrative Code. The “extreme hardship” requirement is not generally required for projects in other aquatic preserves, but is imposed by statute for the BBAP in particular. See Section 258.397(3)(a), Florida Statutes (1995).

32. Under rules governing the BBAP, the applicant must affirmatively demonstrate that an extreme hardship exists for the applicant at the time the application is filed and the project is in the public interest.

33. Rule 18-18.004(11), Florida Administrative Code defines “extreme hardship” as:

    a significant burden, unique to the applicant and not shared by property owners in the area. Self-imposed circumstances caused to any degree by actions of any person subsequent to the enactment of the [Biscayne Bay Aquatic Preserve] Act shall not be considered as an extreme hardship. Extreme hardship under this act shall not be construed to include any hardship which arises in whole or in part from the effect of other federal, state or local laws, ordinances, rules, or regulations. The term may be inherent in public projects which are shown to be a public necessity.

34. Section 258.397(5), Florida Statutes provides for reasonable improvement for ingress and egress. In this instance

    Petitioner already enjoys ingress and egress to its property. Its desire to improve that access is not unique. Petitioner has not demonstrated a significant burden unique to the applicant and not shared by other property owners in the BBAP.

35. Rule 18-18.004(20), Florida Administrative Code defines “public interest” as:

    
    

    . . . environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands or severance of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer or severance of materials. (Emphasis added)

    
    

36. The Petitioner has presented no evidence of demonstrable environmental benefits that would accrue to the public at large as a result of the project.

37. Moreover, Petitioner has not sustained its burden of proving any demonstrable environmental, social or economic benefits which would accrue to the public at large that would clearly exceed all environmental, social, and economic costs of the proposed project.

RECOMMENDATION

Based on the foregoing,

RECOMMENDED:

That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997.

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1997.

COPIES FURNISHED:

Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A.

2701 Southwest LeJeune Road Suite 410

Coral Gables, Florida 33134

Jeffrey Brown, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental

Protection, Mail Stop 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003708

Orders for Case No: 96-003708