The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
Findings Of Fact The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap. Filtrative and recycling properties would be completely removed if the area were dredged. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in Tallahassee, Florida. LINDA M. RIGOT 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 this 17th day of April, 1980. COPIES FURNISHED: C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Ms. Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding are whether the Department should issue a permit to Casetta, and whether the Department should issue a permit to Harbor Point. The two application proceedings were consolidated for hearing purposes. In many respects, common factual and legal issues relate to the two proceedings. For that reason, in the interest of economy of time and space, a single recommended order is being issued with respect to the two proceedings.
Findings Of Fact History of Proceedings In 1974, a prior owner of the property now owned by Casetta filed an application with the Department to entirely fill the pond which is the subject of this proceeding. A final order denying the application was entered by the Department on August 31, 1977. A second application to fill the entire pond was filed with the Department by Casetta's predecessor in 1979. During the pendency of that proceeding, Casetta purchased the property and by stipulation was permitted to be substituted as the Petitioner. The Department gave notice of its intent to deny the second application in February, 1981. Casetta challenged the Department's assertion that it had jurisdiction under the provisions of Chapter 253, Florida Statutes. The matter was forwarded to the Division of Administrative Hearings and given Case No. 81-1082. The matter before the Division has been closed, but it remains as a pending proceeding before the Department. It is being held in abeyance pending the resolution of Casetta's present application. The application involved in this proceeding was submitted to the Department during December, 1981. The City of Riviera Beach, Florida, granted local approval for this application; and on May 18, 1982, the Department issued a Notice of Intent to issue the permit. The Department published a notice of its proposed action in the Commercial Record, a Palm Beach County newspaper. The Florida Wildlife Federation and the Property Owners' Association of Singer Island together filed a request for formal hearing with the Department. The Singer Island Civic Association filed a separate request. Counsel for the Wildlife Federation and the Property Owners' Association withdrew during the course of the proceeding. It was indicated that these parties would voluntarily dismiss the requests for hearing, but no such papers were filed. No one appeared on behalf of the Florida Wildlife Federation or the Property Owners' Association of Singer Island during prehearing conferences that were conducted in this matter or at the final hearing. The Executive Director of the Florida Wildlife Federation testified as a public witness at the hearing and indicated that they were not participating in the proceeding as a party. During the pendency of proceedings respecting the Casetta application before the Division of Administrative Hearings, Harbor Point filed an application with the Department to install a culvert which would connect the pond that is the subject of the Casetta application with a pond located on property owned by Harbor Point through a culvert system. Harbor Point sought to have its application considered by the Department as an alternative to the Casetta application. On or about August 2, 1982, the Department issued a Notice of Intent to deny the Harbor Point application Harbor Point thereafter petitioned for a formal hearing. On or about June 4, 1982, the United States Corps of Engineers issued a permit to Harbor Point to construct its proposed culvert system. Description of Property in the Area of Proposed Projects. Casetta is the owner of approximately five acres of land that lie between the Atlantic Ocean and Lake Worth on Singer Island in Palm Beach County, Florida. The property includes a rectangular pond that is approximately three acres in area. This pond will hereafter be referred to as the "Casetta pond." Submerged lands in the Casetta pond were conveyed into private ownership by the Trustees of the Internal Improvement Trust Fund, State of Florida, in 1924. Harbor Point owns land adjacent to Casetta's property to the north. Harbor Point's property includes a pond which is configured in the approximate shape of an hourglass and is approximately one acre in area. A condominium apartment building has been constructed on Harbor Point's property. Harbor Point members own residential units in this facility. The area presently owned by Casetta and Harbor Point was, in its natural condition, a part of the littoral zone, a shallow, submerged area, on the eastern edge of the lake. Lake Worth is an estuarine water body located between the mainland and Singer Island. The littoral zone of such a lake is of fundamental ecological importance. It serves as a habitat for a wide variety of wildlife and serves to maintain water quality in the lake through uptake of nutrients by vegetation that thrives in the area. The natural condition of the area was markedly changed by the construction of State Road A-1-A. The highway separated the area, including what is now the Casetta and Harbor Point properties, to a large extent from the waters of Lake Worth. A culvert was constructed under the highway in the area of what is now the Harbor Point property. This culvert allowed tidal waters from Lake Worth to enter the area, and the area thus remained in a diminished fashion as a littoral zone of Lake Worth. Sometime between 1953 and 1964, landowners in the area constructed dikes which appear to have served as driveways along their northern and southern boundaries. Fill was placed on the Harbor Point property so that a pond was created in its present approximate configuration. The Harbor Point condominium facilities are presently in part set on the filled land. The Harbor Point pond remained connected with the waters of Lake Worth through the culvert system. The Harbor Point pond thus remains subject to tidal influences from Lake Worth. It is an estuarine system which serves as a part of the littoral zone of Lake Worth. The driveway to the condominium, however, completely Separated the Casetta pond from direct interaction with the waters of Lake Worthy. The Casetta pond is presently in an approximately rectangular configuration. Probably as a result of groundwater interaction, it is affected in a minimal manner by tidal influences in Lake Worth. The Casetta pond receives water from runoff and from groundwater interaction. It has become a freshwater body. While the Casetta pond is no longer a direct part of the Lake Worth estuarine system, and while it is by no means in its natural condition, it remains a wetland ecosystem. The pond is surrounded by mangrove communities. There is considerable biologic activity. Many bird species roost in the mangroves and feed in the pond. The mangroves provide shelter for aquatic organisms which are a food source for the birds. The pond does not support a wide diversity of marine plants or animals. A single species of minnow, mosquito fish, exists in substantial quantities These serve as a food source for birds including ducks, herons, egrets, and kingfishers It appears that the Casetta pond has been used in the past as a borrow pit to obtain fill for adjoining properties trenches, which are as much as six feet in depth, have been dug along the northern, southern, and eastern perimeters and across the pond. Because it is cut off from Lake Worth, and because of the ditches that have been cut through it, the Casetta pond is in a very deteriorated condition. While healthy mangroves surround the pond, they are, except to the west, extremely narrow populations due to the sharp banks that have been caused by dredging activity. The mangroves have no room to expand their population and are stressed due to invasion of upland vegetation such as Brazilian pepper. Widgeon grass exists in the lake bottom. Algae, however, has become the dominant vegetation in the pond. From 80 to 90 percent of the pond's bottom is covered by a mat of algae that ranges up to five and one-half inches in thickness. The algae population is increasing rapidly. Widgeon grass populations are being choked off by the algae. Dissolved oxygen levels in the Casetta pond are consistently low, below standards set in the rules of the Department. The oxygen demand of the algae community has depleted dissolved oxygen levels. While the Casetta pond functions as a wetland community, its values are severely reduced, and it appears that water quality in the pond is likely to continue to deteriorate. While by no means in a natural condition, the Harbor Point pond continues to function as a viable part of Lake Worth. This is a result of the pond being connected to the lake through the culvert system. The edges of the pond are populated by mangrove and cord grass communities. Marine species such as mullet are easily observable. Wading birds roost in surrounding vegetation and feed in the pond. The Harbor Point pond is basically a shallow, tidal water body. Water quality in the Harbor Point pond basically mirrors water quality in areas of Lake Worth to the west of Highway A-1-A. The Harbor Point pond has an eastern and western lobe connected by a narrower area, forming an approximate hourglass configuration. The eastern lobe is farthest from the connection to Lake Worth. Water quality in the eastern lobe is generally poorer than water quality in the western lobe and in Lake Worth. The deepest portion of the Harbor Point pond is in the eastern lobe. Wind action cannot serve to fully flush the waters of this area because of its relative isolation from the western lobe. Runoff from the Harbor Point condominium to the east of the pond and from a fire station parking lot to the west enters directly into the Harbor Point pond. It is filtered only by the action of grasses over which it flows. There is no ex-filtration drainage system. The culvert which connects the Harbor Point pond with Lake Worth runs from the western lobe of the pond under Highway A-1-A into Lake Worth. Lake Worth is a Class III water body under the Department's rules. The Parties' Proposals 1. The Casetta Application Casetta is proposing to construct a high-rise condominium on the eastern portion of its property. There is insufficient land on the property as it is presently configured to accommodate needed parking spaces. Casetta proposes to fill in 1.8 acres, or approximately 60 percent of the Casetta pond in order to construct parking facilities. Casetta has proposed to construct a culvert system that would connect the remaining portion of the pond with Lake Worth. The remaining portion of the pond would be regraded and configured. The northern and western boundaries would remain basically in their present configuration The remainder of the pond would be completely modified. A meandering shoreline would be created for an "L"- shaped pond. The bottom would be recontoured so that broader, shallow areas along the shoreline would be created. With the culvert system installed, the reconfigured pond would receive tidal waters from Lake Worth. The pond would effectively become, as the entire area once was, a portion of the littoral zone of Lake Worth. With the meandering shoreline and a gradually sloping bottom, the reconfigured pond would have as much area for littoral zone vegetation to establish itself as the present pond. Casetta proposes to commence construction activities by filling in a portion of the pond and regrading the remainder. The pond would be drained so that the algae that presently exists in large quantities would die and be removed. Clear fill material would be used to grade the pond. An exfiltration system would be created so that runoff that would reach the pond from upland areas would be filtered before it could enter the pond, thus reducing the impact of pollutants from upland runoff. The proposed culvert system would be in three sections. There would be a 35-foot section leading from the pond and slanting gradually downward to a point approximately eight to nine feet under Highway A- 1-A. The second section would be 110 feet long, lying vertically under Highway A-1-A. The third section would be 95 feet long, gradually rising from the second section to the bottom of Lake Worth. The bottoms of the open ends of the culvert in the Casetta pond and in Lake Worth would be at the ordinary low-tide marks. The top would be below the ordinary high-tide marks. Thus, the culvert openings would be exposed at low tide and submerged at high tide. The portion of the culvert under A-1-A would be filled with water at all times. It is necessary to place the culvert at least eight feet under Highway A-1-A in order to avoid utility pipes and cables that lie under the highway. The portion of the pipe under A-1-A would be installed through a boring technique known as "jack and bore." This technique would obviate any need for the closing of traffic on Highway A-1-A. The portion of the culvert in the Casetta pond and in Lake Worth would be installed by digging trenches, laying the pipe, then filling the trenches. Two openings would be made in the pipe at either end of the deep sections. These would be "manhole-type openings that would allow for periodic maintenance. Installation of the portion of the pipe in Lake Worth would be accomplished by building a work platform into the lake from material that is dredged from the trench. Once the pipe is laid, the material from the work platform would be placed back on top of the culvert, and any extra material would be removed from the site. Turbidity screens would be used to surround the project to reduce the short-term impacts of turbidity caused by construction. Once the pond is reconfigured and the culvert is installed, tidal flows would be introduced to the reconfigured pond on a gradual basis in order to observe any problems that might result. Shoreline grasses such as cord grass would be introduced in the shallow areas, and mangroves removed during filling operations would be replanted along the shoreline. This would serve to stabilize the shoreline and to provide the beneficial effects of littoral zone vegetation, including wildlife habitat and water quality benefits. The reconfigured Casetta pond would be approximately 33,000 square feet in area. If the culvert system functions as proposed, the reconfigured pond would become a part of Lake Worth. There are environmental and ecological advantages and disadvantages to the proposal. The disadvantages are rather obvious. One and eight-tenths acres of wetland habitat would be eliminated. While the present Casetta pond is only a marginally valuable wetland, it is not without its beneficent effects as have been described above. Furthermore, during construction, the habitat values of the Casetta pond would be lost, and short-term deleterious water quality impacts would occur in Lake Worth. There are trade-offs. The proposed filling, regrading, and connecting of the ponds to Lake Worth could have substantial positive impacts. The most apparent of these is that Lake Worth would regain 33,000 square feet of littoral zone. Construction activities have removed as much as 75 percent of the Shoreline vegetation that once Surrounded Lake Worth. The littoral zone has been replaced with developments that in ecological terms have negative impacts. Reconnecting the ponds to Lake Worth would be a slight reversal of that trend. Habitat for marine species would be increased, and the "kidney effect" that shoreline vegetation provides would be reestablished. Except during construction, Casetta's proposal would have no adverse water quality impacts upon surrounding waters. Adverse impacts during construction would be minimized by protective techniques that Casetta has proposed, including the use of turbidity screens. Long-term water quality impacts of the proposed project would be positive. Water in the present Casetta pond is of poor quality. The pond does not presently serve any water quality function for Lake Worth, since it is not connected to Lake Worth. Connecting the reconfigured pond to Lake Worth would allow waters from the lake to be purified through nutrient uptake by littoral zone vegetation. In habitat terms, the filling would reduce the total area of wetland habitat. The quality of the habitat would, however, be vastly improved. Rather than an unnatural, stagnant pond which provides habitat for only a few varieties of very common freshwater minnows, a marine habitat would be provided for all manner of creatures that survive in the littoral zone of estuarine water bodies. Bird habitats would not be reduced, since the shoreline of the lake would not be lessened. Thus, while the Casetta proposal would reduce the total size of wetland habitat, it would vastly improve it and would not have a detrimental effect that would be contrary to the public interest. In order for the reconfigured Casetta pond to offer an improved wetland habitat and a positive water quality impact for Lake Worth, it is essential that the proposed culvert system functions so as to allow an unimpeded interchange of water between the reconfigured pond and Lake Worth. If the culvert system does not operate, the result of the proposed project would be merely to lessen wetland habitat. Rather than a three-acre unnatural wetland habitat, there would be a 1.2-acre unnatural wetland habitat. Such an adverse impact upon wildlife habitat would be clearly contrary to the public interest. Furthermore, limited exchange of water between a eutrophic pond and Lake Worth could have an adverse impact upon water quality in Lake Worth so as to result in violations of the Department's water quality standards along the border of Lake Worth. The evidence does not establish that the proposed culvert system will properly function. Casetta had proposed a 36-inch culvert. Robert Snyder, a consulting engineer, was retained to determine the flushing characteristics of the culvert. Snyder calculated that maximum velocities associated with mean or average tides through the culvert system would be 1.89 cubic feet per second. Snyder calculated that this exchange rate would be sufficient to flush sediment and debris that would collect in the culvert. Thus, the culvert would be self- cleaning with only limited maintenance required to keep it open. In calculating the exchange rate, Snyder utilized the wrong formula. He overestimated the exchange rate by a factor of two. If the rate estimated by Snyder is reduced by a factor of two, it is apparent, that the exchange rate would not be sufficient to flush the culvert. Sediment and debris would collect in the pond, and rather regular maintenance would be required. Mechanical means can be utilized to clean a clogged culvert. A culvert of the length and configuration proposed by Casetta is difficult to clean through mechanical processes, however, and the processes themselves increase turbidity in the area. The evidence does not establish that regular maintenance would be sufficient to keep the culvert free of sediment and debris so that there would be a free exchange of water between Lake Worth and the reconfigured pond. When engineer Snyder was made aware of his miscalculations, he proposed reducing the size of the culvert to 24 inches. He testified that this would adequately increase the exchange rate so that the culvert would be selfmaintaining. Snyder's testimony in this regard has not been deemed credible. Given the witness's use of an erroneous formula in calculating exchange rates and another error that he admitted making in calculating scour potential, the witness cannot be considered competent to give expert testimony in these areas. If the culvert system proposed by Casetta allowed for the free exchange of waters between Lake Worth and the reconfigured Casetta pond, the water quality and habitat impacts of the proposed Casetta project would be, on balance, positive. The evidence does not, however, establish that the culvert system would function. It appears likely that the culvert system as proposed would be frequently clogged with sediment and debris, thus preventing the exchange of waters between the reconfigured pond and Lake Worth. The result of the proposed project would therefore be a reduction of wildlife habitat with potentially adverse water quality impacts upon the waters of Lake Worth. 2. The Harbor Point Proposal Harbor Point has proposed to install a culvert system that would connect the Casetta pond in its present configuration with the Harbor Point pond. Since the Harbor Point pond is connected through a culvert system with Lake Worth, the Harbor Point proposal would result in opening the Casetta pond to tidal influences from Lake Worth. Harbor Point has presented no evidence as to construction techniques that would be utilized and has provided no assurance that the construction itself would not result in water quality violations in the Harbor Point pond and in Lake Worth. Opening the Casetta pond in its present configuration to tidal influences would have the positive impact of allowing an exchange of water from the Casetta pond. Water quality in the Casetta pond would inevitably be improved. Given the configuration of the bottom of the Casetta pond, with its deep troughs, a complete exchange of waters would not occur, and water quality in the Casetta pond would be likely to remain poor, albeit improved. The Harbor Point proposal would have short-term and long-term negative impacts upon water quality in the Harbor Point pond and in Lake Worth. Simply opening the Harbor Point pond and Lake Worth to exchange of poor-quality water with the Casetta pond would have a negative impact. As water quality in the Casetta pond improves, this impact will be lessened, but will remain. Furthermore, the proposed culvert would result in poorer flushing of the waters from the eastern extremity of the Harbor Point pond. This would occur as a result of increased water velocities in the western extremity. Water quality in the eastern extremity of the Harbor Point pond is already stressed, and reducing the flushing characteristics of the pond would be likely to result in violations of the Department's water quality standards in the eastern portion of the Harbor Point pond. While the Harbor Point proposal would have the ecologically positive impact of opening the Casetta pond to tidal flows, it would have the negative impacts of reducing water quality in the Harbor Point pond and potentially along the shoreline of Lake Worth. Water quality in the Casetta pond would thus be improved at the expense of water quality in the Harbor Point pond and in Lake Worth. Riparian Rights Harbor Point owns a narrow fringe of the northern border of the Casetta pond. The precise amount of the Casetta pond that is owned by Harbor Point cannot be determined from the evidence, but it is clear that Harbor Point owns some portion of the Casetta pond which may be at one point as much as six feet of the northern portion of the pond. The Casetta pond offers minimal amenity to Harbor Point. The pond is unsuitable for boating, bathing, swimming, or any commercial enterprise. The pond is largely blocked from view by Harbor Point residents by abundant mangrove and upland vegetation. Reconfiguration of the pond as proposed by Casetta would not change the northern boundary of the pond, and it would remain largely blocked from view by Harbor Point residents. To the extent that the Casetta pond provides a view for Harbor Point residents, it is only minimally attractive given the configuration of the pond and given the fact that a high-rise condominium has been constructed on property to the south of the pond. There is no evidence in the record from which it could be concluded that the value of Harbor Point property would be in any way reduced as a result of the projects proposed by Casetta.
Findings Of Fact Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property") The Property has a shore length of 68.5 feet on Crescent Lake. Crescent Lake is a "water of the state" as defined in Section 403.031, F.S. The agency, now DEP, is the state agency charged with environmental concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake. Mr. Carter's westerly neighbor also has a shorter dock going into the lake. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value. The Hagemans initially filed a complaint with the DEP in regard to the dock. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes. The consent order provides, in pertinent part, that Mr. Carter will (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about 100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state". A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C. 3/ Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows: 2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof * * * 5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent. * * * 12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights. DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 this 7th day of July, 1995
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact Dredge And Fill Permit And Consent Order 1.01 Background On December 10, 1992, the Department issued a dredge and fill permit pursuant to Florida Administrative Code Rule 17-312. 1/ The permit was issued to Hubbard in care of Dock Masters of Homosassa, Inc. ("Dock Masters"). Dock Masters is the entity responsible for the project. The project is located in a lagoon off Kings Bay, in the Crystal River in Citrus County, Florida. It is in a man-altered Class III waterbody in Section 28, Township 18 South, Range 17 West, on Lot 15, West Baywater Court. The permit authorized construction of an 883 square foot single family dock and 70 foot retaining wall. The permit required Hubbard to create 346 square feet of wetlands as mitigation and to dedicate all remaining wetlands on the site as a conservation easement to the Department. The dock is constructed several feet east of the permitted location and is built in a slightly different configuration. The permitted square footage over the water is reduced in the dock actually constructed by approximately 20 feet. About 10 feet of fill is added to wetlands. Hubbard notified the Department of the discrepancy between the permitted dock and the dock actually constructed. In July, 1993, the Department inspected the site and determined that the dock was not constructed in accordance with the permit. The Department determined that there was a violation of the permit. The location and configuration of the dock actually constructed did not comply with the permitted plans. However, the Department determined that the dock actually constructed was permittable. The Department entered into a Consent Order with Dock Masters approving the dock actually constructed. The Consent Order imposed civil penalties of $932 and costs of $150 but required no corrective action. During the formal hearing conducted on March 8-9, 1994, Hubbard requested that the dock actually constructed be shortened 3.5 feet and that a four foot section of the west side of the dock be removed (the "as-built dock"). Modifications included in the as-built dock are minor. They merely reduce the size of the dock and do not create additional adverse impacts. Petitioner is an adjacent land owner to the as-built dock. Petitioner's dock is configured, more or less, parallel to the shore line. The as-built dock on Hubbard's property is configured, more or less, perpendicular to the shore line. The as-built dock extends farther into the lagoon than does Petitioner's dock. In addition, the as-built dock is situated between Petitioner's dock and the confluence of the lagoon and King's Bay. Navigation The as-built dock does not adversely impact navigation. The as-built dock extends approximately 37 feet into the lagoon. The lagoon is approximately 197 feet wide at the project site. There is 160 feet of open water in which to navigate past the as- built dock. Depths in the open water beyond the end of the as-built dock are adequate for navigation. During low tide, depths in the lagoon at the project site are: 3.5 feet at the end of the as- built dock; 5.0 feet, 40 feet from the end of the dock; 4.4 feet, 80 feet from the end of the dock; and 3.0 feet, 120 feet from the dock. The as-built dock does not adversely affect boaters' ingress and egress into and out of the lagoon. The center of the navigational channel in the lagoon is approximately 40 feet from the edge of the as-built dock. In extremely low tides, areas around the as-built dock will go dry before the center of the navigational channel goes dry. Boat traffic in the lagoon is sparse at the project site. Boats using the lagoon are required to travel at idle speed. The speed limit is posted on signs in the lagoon. The as-built dock does not present a navigational hazard. The dock is easily seen and is lighted at night. Manatees The as-built dock will not adversely impact manatees. The area around the project site is not a core area for manatees. The as-built dock is a single family dock with a berth for one boat. The U.S. Fish and Wildlife Service and the Department's Threatened and Endangered Species Section have responsibility for protecting manatees. Both agencies were contacted regarding the Hubbard dock. Neither agency objects to the as-built dock. Manatees congregate around large springs. There are no large springs near the project site. The two nearest manatee sanctuaries are approximately 2,000 feet from the as-built dock. No boating or snorkeling is allowed in the manatee sanctuaries during manatee season. Boat traffic in the lagoon where the as-built dock is located is limited to idle speed. Manatees feed on hydrilla. Hydrilla is the predominant submerged plant around the project site. The as-built dock has no significant adverse impact on hydrilla in the area. Even if the as-built dock had an adverse impact on hydrilla, the as-built dock will not significantly reduce the amount of hydrilla available for manatee feeding. Hydrilla is an exotic plant that crowds out native plants. Hydrilla is harvested or treated with herbicides by Citrus County to try to control the growth of hydrilla. Citrus County attempted to control the growth of hydrilla by harvesting or treating approximately 666 acres of hydrilla in 1992 and approximately 580 acres in 1993. Other Potential Impacts The as-built dock will not cause any other adverse impacts to the public interest. The as-built dock does not adversely affect the property of others living on the lagoon and does not prevent reasonable access to any other property on the lagoon. The as-built dock does not adversely affect public safety. The dock is highly visible and is lighted at night. The project is located in an area in which boat traffic is limited to idle speed. The as-built dock does not adversely affect the conservation of fish and wildlife species, including threatened or endangered species, or the habitats of such fish and wildlife species. Aquatic habitat around the as-built dock is functioning normally. Shoreline vegetation is relatively natural and includes sawgrass, arrowhead, cedars, and red bay trees. The mitigation area has been correctly initiated and is now tending toward success as plantings mature. Use of the as- built dock avoids damage to shoreline and submerged vegetation that otherwise may occur if a boat were brought to shore in the absence of the dock. Various species of fish use the area, but the primary species is mullet. The retaining wall will benefit fish and wildlife habitat by preventing fertilizer and other yard chemicals from draining directly into the lagoon and causing water quality problems. Fish and wildlife habitat is further protected from adverse impacts by permit conditions. Permit conditions prohibit live-aboard boats, fueling facilities, and fish cleaning facilities at the dock. Cumulative Impacts The as-built dock and similar facilities in the area will not have a cumulative adverse impact on fish and wildlife habitat, endangered species, or navigation. Hubbard conveyed a conservation easement to the Department covering the remaining 400 feet of her shoreline. No future permitted or permit exempt docks can be built on Hubbard's shoreline. Remaining wetlands on-site will be preserved in perpetuity. Few docks and seawalls can be constructed in the area in the future. Substantially all of the residential lots in the area along the lagoon have: already been built out; already have water dependent facilities such as docks and slips; and already are sea-walled or rip-rapped. The state's land acquisition program (the "P-2000 Program") is seeking to acquire major tracts along the Crystal River in nearby areas. Those acquisitions will prevent similar future development in areas farther from the as-built dock. Benefits To The Public Interest The as-built dock has resulted in benefits to the public interest including the conservation easement over 400 feet of shoreline and wetlands. The conservation easement will benefit the public interest by permanently preserving fish and wildlife habitat. The as-built dock helps prevent prop dredging that may otherwise occur if a boat were kept on the shoreline in the absence of a dock. The retaining wall will reduce fertilizer and yard chemical runoff into the lagoon. Consent Of Use Background The Department notified Hubbard on September 2, 1994, that the as-built dock and retaining wall are located on sovereign submerged lands. Hubbard applied for an after-the-fact consent of use pursuant to Florida Administrative Code Chapter 18-21. On September 20, 1994, the Department issued an after- the- fact consent of use on Project No. 091923403 to allow Hubbard to maintain and use the dock on sovereign submerged land. Review Of The Dock The as-built dock was reviewed by Mr. Todd A. Vandeberg, Planning Manager for the Department's Southwest District, Mr. Henry Michaels, and Mr. Matt Clements in accordance with Rule 18- 21 and the Department's guidelines and policies for issuing consents of use for single family docks. See, Submerged Lands Environmental Resources Program Operations and Manual, Volume III (the "Operations Manual"). Mr. Michaels and Mr. Clements performed an on-site compliance check with respect to the as- built dock in accordance with Rule 18- 21 and the Operations Manual. The as-built dock is not contrary to the public interest. The dock preempts less than 1,000 square feet of sovereign land for each 100 linear feet of shoreline owned by Hubbard. The dock meets the 25 foot setback requirements of the Board. The dock extends only to a depth of three feet rather than the four foot depth allowed. The dock extends across only 19 percent of the width of the lagoon. Intent And Purpose Of The Board The as-built dock insures maximum benefit and use of sovereign submerged lands for all citizens of Florida. The dock does not prevent the continued enjoyment of traditional uses of the lagoon by the public including navigation, fishing, and swimming. The as-built dock extends into the lagoon only as far as necessary. 2/ The as-built dock does not constitute a navigational hazard. The as-built dock provides maximum protection for the management and use of sovereign submerged lands including public recreation and fish and wildlife propagation and management. Hubbard provided a conservation easement along the majority of her shoreline. The easement is being well maintained. Issuance of the consent of use was coordinated with the Department's regulatory staff. The as-built dock minimized or eliminated the cutting, removal, and destruction of wetland vegetation. The as-built dock will not adversely impact manatees or their habitat. The as-built dock aids in the implementation of the State Lands Management Plan. It is consistent with the state's overall management plan for the management of all sovereign lands. The as-built dock is consistent with the Board's specific standards and criteria for siting docking facilities. 3/ The consent of use contains terms, conditions, and restrictions sufficient to protect and manage sovereign lands. The consent of use contains general conditions established by the Department pursuant to Chapter 253, Florida Statutes, 4/ and Rule 18-21. The as-built dock is a water dependent facility. It is not enclosed or climatized for human habitation. The primary purpose of the dock is to moor a vessel. Secondary uses include fishing and recreational activities such as swimming and sun bathing. 5/ The primary purpose and secondary uses for the as-built dock are consistent with the Board's stated goal that all sovereign lands are single use lands which should be managed for traditional recreational uses such as fishing, boating, and swimming. The dock provides ingress and egress to the lagoon and provides a safe place to moor a boat. No significant adverse impacts will result from Hubbard's use of sovereign lands and associated resources, including fish and wildlife habitat and endangered and threatened species. A conservation easement along a majority of the Hubbard shoreline protects existing resources beyond the area of the dock. The as-built dock was designed and constructed to minimize or eliminate cutting, removal, and destruction of wetland vegetation. 6/ No dredging of sovereign lands was required to construct the as-built dock. The as-built dock protects the riparian rights of adjacent property owners. The as-built dock meets applicable setback requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Hubbard's application for a permit and consent of use, approving the consent order entered into between the Department and Hubbard, and denying Petitioner's request for attorney fees. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. DANIEL MANRY 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 this 31st day of May, 1995.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, immediately north of the Venetian Causeway. The marina is constructed on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund. On May 4, 1976, DER issued Permit No. 13-30-0364-6E to Respondent. That permit authorized the construction of two concrete marina docks, one "T" shaped and 255 feet long, and the other "J" shaped and 500 feet long. The project site is north of the Venetian Causeway on the western edge of Biscayne Bay, Section 31, Township 53 North, Range 42 East, Dade County, Florida. On August 18, 1977, DER issued Permit No. 13-30-3984 to Respondent. That permit authorized the construction of a 700 foot long "J" shaped pier with 24 finger piers and associated mooring pilings, and the construction of a 280 foot long "T" shaped pier. This permit authorized construction to be undertaken directly north of the docks authorized by Permit No. 13-30-0364-6E described above. On August 18, 1977, Respondent applied to DER's West Palm Beach office for a permit to construct the center pier of the Plaza Venetia Marina. On October 27, 1977, DER issued Permit No. 13-30-0740-6E to Respondent. This permit, which is the only one of the three permits at issue herein, authorized construction of a boat tie-up and fueling facility for a public marina. This facility represented a final phase of a master plan which includes the two other marinas with tie-up accommodations authorized by Permit Nos. 13-30-0364-6E and 13-30-3984. The drawings which accompanied the permit application carried the designation "FUEL" on the large platform at the end of the center pier of the marina. The cover letter from Respondent's authorized agent explained that " . . . the fueling area has been made sufficiently large so as to isolate the fuel pumps." No specific mention was made in the application or supporting materials of any building to be constructed on the central pier, and none of the permit drawings initially filed with DER depict any such building. DER employees who processed the permit, however, knew at some time during the processing of the permit application that some sort of structure would likely be constructed on the platform at the end of the center pier, although the plans did not disclose such a building, and the agency made no inquiries about, nor requested any additional information from Respondent concerning the type of structure contemplated. At the time of the issuance of Permit No. 13-30-0740-6E Respondent did not know the exact nature, size, or height of any structure that it might wish to build on the central platform. At the time, Respondent had only a conceptual idea of a structure that might accommodate the uses it contemplated for the platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings attached to Permit No. 13-30-0740-6E. That drawing was not initially filed with the original permit application, but was provided during the permitting process by Respondent prior to issuance of the permit. Permit No. 13-30-0740-6E was issued to Respondent on October 27, 1977, pursuant to the authority granted DER under Chapters 253 and 403, Florida Statutes. Nowhere in the permit is there any reference to Section 258.165, Florida Statutes. The permit, by its expressed terms, authorized the following: To construct a boat tie-up and fueling facilities [sic] for a public marina. The facility will extend approximately 390 feet into Biscayne Bay from the bulkhead line. The dock will provide tie-up spaces for 20 boats and six fuel slips, and will contain floating oil collars in case of oil or gasoline spillage. This facility represents the final phase of a master plan which includes two other marinas with tie-up facilities . . . On January 11, 1979, some approximately fourteen months after issuance of the permit for the center pier, Respondent sent a letter to DER's West Palm Beach office which read as follows: Enclosed please find a copy of a letter as sent to the Army Corps, re: the service facility you and I discussed for the already approved fuel dock (State No. 13-30-0740-6E) for the Plaza Venetia Marina. I also enclose copy of the plans. Please review as quickly as possible since we intend to start construction on the marina within 30 to 45 days. (Emphasis added.) Enclosed with the January 11, 1979, letter to DER was a copy of a January 11, 1979, letter to the Army Corps of Engineers which read as follows: Recently I reviewed with [a Corps representative] the placement of a small service accommodation facility on the already approved fuel dock for the Plaza Venetia Marina . . . I left a set of plans with [the Corps] at the Corps office in Miami Beach. The facility is in close keeping with the permitted use of the marina. It will occupy less than half the already approved area of the fueling facility. It will be constructed on an already permitted facility. Included are a small bait and tackle shop; convenience store; captains' office; observation area and required bathrooms. The discharge from the bathrooms will flow directly into the main County sewer disposal system and will utilize a sewer pump-out facility located on the fuel dock. * * * After carefully reviewing my existing permit, the limited nature of the facility described, and its sole purpose of servicing the already permitted marina, please advise me if any modifications are required. I look forward to hearing from you as quickly as possible on this matter since construction of the marina is projected to begin within the next 30 to 45 days. A copy of the floor plan of the proposed building was attached to the January 11, 1979, letter received by DER. This floor plan indicates areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan is a storage area for electric carts to be used in servicing vessels utilizing the marina facility. The record in this cause establishes that Respondent never intended its January 11, 1979, letter to DER to be a request for a permit modification or an application for a new permit. Instead, the letter was intended only as a request for DER review of and comments on the proposed structure to be built at the end of the central pier. DER representatives in its West Palm Beach office forwarded the letter to the Tallahassee office of DER. DER never responded either orally or in writing to Respondent's communication of January 11, 1979, enclosing the building plan. On June 19, 1979, DER had opened its file No. 13-9916 in its standard form dredge and fill permitting section in Tallahassee in response to a letter received from Respondent requesting the addition of some dolphin pilings along the bulkhead at the Plaza Venetia Marina. The request from Respondent was treated as standard form application because the scope of the entire marina project exceeded short-form criteria. After receiving this request from Respondent, DER sent a completeness summary to Respondent within 30 days of receipt of the application requesting that Respondent provide approval from the Department of Natural Resources for the use of sovereignty submerged lands. Through various correspondence, this application was expanded to include several additional modifications to the overall marina, including reconfiguration of the fuel dock, addition of finger piers, reconfiguration of the "T" docks, and addition of a 12-foot boardwalk. Finally, the application was modified so that it constituted an application to consolidate the three existing permits. On January 29, 1980, Respondent submitted the last item of information required by the completeness summary except for DNR approval for use of sovereignty submerged lands. The aforementioned letter of January 11, 1979, from Respondent, which included the building floor plan, was apparently placed in DER file No. 13-9916 relating to Respondent's requested permit modification. Although the floor plan is contained in this file, the record in this cause clearly establishes that neither Respondent nor DER treated either the January 11, 1979, letter or the enclosed plan as a request for modification of Permit No. 13-30-0740-6E. DER file No. 13-9916 sat dormant for almost three years awaiting DNR consent for the use of state-owned lands. By letter dated July 10, 1981, DER requested Respondent to indicate whether it wished to pursue the permit modification application further since it had been 1,085 days since DER had notified Respondent of the necessity to furnish notification from DNR concerning further use of state sovereignty submerged lands. By letter dated July 15, 1981, Respondent withdrew its permit modification application. On April 20, 1979, the City of Miami issued a valid building permit for the marina fueling station. Respondent notified DER in July, 1979, that it was beginning construction of the marina. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 28, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Subsequent to the commencement of construction DER representatives inspected the building site on several occasions. Respondent was not made aware in advance of when these inspections would occur since they were scheduled at the sole discretion of DER. DER first learned of the actual construction of the marina fueling station after receipt of a citizen complaint on December 1, 1981. Upon inspection of the site by DER personnel on December 2, 1981, it was discovered that the building on the fuel dock was partially complete with finish work and the placement of some interior and exterior walls remaining to be accomplished. DER served a warning notice on Respondent on December 7, 1981, advising Respondent of an alleged violation of its existing permit. A second warning letter was sent to Respondent on January 26, 1982, followed by the issuance of the Notice of Violation by DER. DER incurred costs and expenses of $405.40 in investigating the alleged violation. The structures authorized by Permit Nos. 13-30-0364-6E, 13-30-3984, and 13-30-0740-6E ("the structures") have been constructed by Respondent. The structures are located within the Biscayne Bay Aquatic Preserve ("the Preserve") established by Section 258.165, Florida Statutes. Biscayne Bay at the site of the structures is a navigable water of the State of Florida. A building with a floor area of approximately 3,800 square feet and a roof area of 5,292 square feet has been constructed at a cost of approximately $500,000 on the platform at the end of the center pier of the marina. The net area of the platform contains about 9,640 square feet. It has been stipulated by the parties that construction of the building on the center pier will not result in significant adverse water quality or biological impacts which were not contemplated when the above-referenced permits were issued for the marina. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant's room with cash register and equipment for the fuel pumps. All of these uses are customarily associated with the operation of marina facilities. The building as constructed differs in several minor respects from the one shown on the plans submitted to DER in the January 11, 1979, letter from Respondent. What had been shown on those plans as outdoor seating has been enclosed, walls and proposed uses have been relocated within the building, and the entire building has been moved back on the fuel dock. It is concluded, however, that these changes are of such a minor nature as to not constitute a material departure from the plans furnished to DER in January of 1979. As-built plans for the building have never been provided by Respondent to DER. At the time of Respondent's application for the permit for the center pier, DER rules required that a permit applicant provide cross-sectional drawings of proposed structures to be built in conjunction with docking facilities such as those proposed by Respondent. Drawings attached to the permit application show two cross sections through the center pier, but neither of these cross sections depict a building to be constructed on the pier. Respondent did not submit cross-sectional drawings for the building at the time of its application, and none had been submitted to DER as of the date of final hearing in this cause. However, DER at no time requested such cross-sectional drawings, despite the fact that those agency representatives processing Respondent's permit application assumed from the outset that some structure would and could be built by Respondent on the platform attached to the central dock under the terms of the October 27, 1977, permit. The estimated cost for removal of the building at the end of the central pier is $150,000-$200,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. CASE NO. 82-1640 FLORIDA EAST COAST PROPERTIES, INC., Respondent. /
Findings Of Fact NFS filed an application with the Department for a renewed operations permit, Permit No. A016-126149. The Department entered a Notice of Permit Issuance indicating its intent to grant NFS' permit application. The Department, however, informed NFS that it was imposing several specific conditions on the permit being issued to NFS. NFS requested a formal administrative hearing to contest the imposition of several of the specific conditions it had been informed the Department intended to impose. At the commencement of the final hearing, the parties represented that they had resolved their dispute concerning all of the specific conditions at issue except one. The parties represented that the only remaining condition imposed by the Department which was still at issue hearing was specific condition number 9. Pursuant to specific condition number 9, NFS was required to comply with the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, requires the following: No owner or operator of a source governed by Rule 17-2.650(2)(c)11., F.A.C., shall cause, permit, or allow any visible emissions (five percent opacity) from such source(s) except that at the point where material is being discharged to the hold of a ship from a conveyor system. When the conveyor and/or hatch covering is moved, an opacity of 10 percent will be allowed. NFS has not filed a challenge pursuant to Section 120.56, Florida Statutes, to the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. NFS failed to offer any proof that Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, and the rule's 5% opacity limit does not apply to it. NFS suggested that it "could not live with" the 5% opacity requirement. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, does contain an exemption from the 5% opacity requirement of the rule. NFS did not, however, offer any proof that it qualifies for any exemption from the 5% opacity requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing North Florida Shipyard, Inc.'s challenge to the Department's Notice of Permit Issuance. DONE and ENTERED this 24th day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 this 24th day of August, 1992. APPENDIX Case Number 92-2822 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2 4-5 3 5. 4 7-8. 5 8. COPIES FURNISHED: North Florida Shipyard, Inc. Commodores Point - Administrative Office Attn: John B. Shiffert Post Office Box 3863 Jacksonville, Florida 32206 Jefferson M. Braswell Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On October 25, 1990, Respondent Eckert applied to Respondent DER for a permit seeking authorization to construct a 280-foot single-family recreational dock at 5766 Red Cedar Street in Pensacola, Escambia County, Florida. The dock would extend waterward from that address and lot into Russell Bayou in Escambia County, Florida, a class III water of the State. When objections were filed to the original application for the 280-foot dock, Respondent Eckert amended his permit application and now requests a permit to build a 265-foot dock, meaning that the dock would extend 265 feet waterward from the mean high water line and, therefore, the boundary of the Respondent/applicant's property. The Petitioners are all adjacent or nearby land owners who object to the project, pursuant to Section 403.918(2), Florida Statutes (Supp. 1990), asserting that the project is contrary to the public interest in terms of recreational values or navigation. Russell Cove is a relatively-shallow body of water enclosed on three sides, with access to open water on its western end. Its depth fluctuates somewhat. It is tidally influenced, including lunar tides, which cause shallower-than-normal low water. The bottom of the cove is sandy with areas of rolling contours and shifting sandbars. The deepest points in the vicinity of the proposed dock vary between four and five and one-half feet. A 300-foot dock exists on the outward or westward end of Russell Cove. The channel widens to such an extent by the time it reaches the vicinity of that dock, however, that a 300-foot dock poses no navigational problem to boats using the interior of the cove. The applicant contends that the Petitioners who live eastward and "up the cove" from him have plenty of room to navigate past his proposed dock because, as his chart indicates, an apparently wide channel of slightly deeper water traverses the cove, waterward of all the docks in the cove, including that which he proposes to construct, with sufficient width beyond the end of his proposed dock to allow any boats which typically use the cove to navigate by it safely. The Petitioners who live on the interior of the cove, eastward of his proposed dock, and who would have to navigate by it, contend, however, that the safest route for them to navigate is immediately in front of or intersecting the tip of the location of the proposed dock. Ms. Bass testified for Petitioner Wittig. Her boat is equipped with a depth finder, and over the years of navigating in and out of the cove, she has learned that the supposedly wide channel referenced by the applicant is not actually a uniform wide, deep channel. Rather, there are sandbars occurring at various intervals, which sometimes shift in location, which point into the channel from the more southerly part of it, thus constricting it so that the safest passage is really a much narrower route closer to the ends of the docks and the proposed dock jutting into the channel. The safest passage is a slender route directly intersecting the tip of the location of the proposed dock. Ms. Bass established that there is already a narrow margin of maneuverability in the cove due to the intermittently shallow water, and, in stormy or foggy weather, the extra length of the dock might be unsafe. Petitioner Ericson has a non- motorized sailboat which must tack back and forth to enter or leave the cove when sailing into the wind. Thus, he needs a wide area to navigate in or out of the cove under certain prevailing wind conditions. Although DER's expert witness, Mr. Harp, supported the relative depth measurements established by the applicant (adjusted for seasonal tidal variations), he conceded that he had not measured an east/west line in the sandbar area described by Ms. Bass on the southerly side of the channel and jutting into the channel. Rather, he measured a north/south line and an east/west line in the route which Ms. Bass indicated she uses close to the docks and the proposed dock but not an east/west line in the sandbar area. He further conceded that the bottom was uneven or rolling in some areas. The applicant desires the extra dock length, compared to the 210-foot length of the Jones and Johnson piers on either side of him, so that he will be able to cast into slightly deeper water for fishing purposes. However, the depth prevailing at the 210-foot mark waterward from the shoreline is four feet, and the depth at the end of the proposed dock would only be approximately two inches deeper, 55 feet waterward of the other docks. Even out at the 300-foot waterward mark from shoreline, the water would be less than six inches deeper than it is at the 210-foot mark. Consequently, it was not shown how the applicant would gain any particular fishing advantage, in terms of deeper water, by locating the end of his dock some 55 feet waterward of the adjacent docks. Mr. Harp of DER visited the site to determine the water depths referenced above and to determine whether the dock would comply with Chapter 403, Florida Statutes, and the various pertinent rules concerning water quality contained in Chapter 17, Florida Administrative Code. Mr. Harp made a biological appraisal of the site to determine the location and density of seagrass beds and to determine whether the project would adversely affect water quality in Russell Bayou. Seagrasses exist at the site only between approximately 130 and 150 feet waterward of the mean high water mark. The remaining bottom substrate waterward of that point to, including, and beyond the end of the proposed dock is simply bare sand. The dock is narrow enough not to damage seagrasses by shading. Based upon Mr. Harp's uncontroverted expert testimony, it is found that the project will not result in a violation of class III water quality standards and, indeed, no Petitioner disputes that fact. Except indirectly, through navigational impact, the proposed dock does not pose a significant adverse affect on public health, safety, welfare or the property of others. It was not shown that the dock would adversely affect the conservation of fish or wildlife and, indeed, those elements of the "public interest criteria" are undisputed. The proposed dock is considered permanent in nature and will have no significant historical or archeological resource impact. It will not cause a significant adverse effect on fishing values aside from the incidental effect its navigational impact might have on those values. The proposed dock will have some impact on navigation. As shown by Respondent's Exhibit 3, the dock will extend approximately 55 feet more waterward than the existing 210-foot Johnson pier. Although a channel width of four times a boat's length is an adequate margin of safety for an average boat sailed in a competent manner, the fact that the proposed dock would extend 55 feet beyond the extent of the adjacent Johnson dock and the fact, established by Ms. Bass, that there are intermittent shallow sandbar areas which further narrow the channel from the southerly margin of it, reveal that the safe navigational channel is much narrower at the location of the end of the proposed dock, than in other nearby areas. The proposed dock would intersect this narrow "safe channel" at its most constricted point or "pinched area". For this reason, the proposed dock with its length constitutes an impediment to navigation to both the power boat and sailboat navigation described by the Petitioners' witnesses. The pier existing at the westward opening of the cove, although it is 300 feet in length, does not impose an impediment to navigation because the channel is much wider at that point than at the constricted point where the applicant's proposed 265-foot dock would intersect it. The dock would also pose some detrimental effect on the recreational values of the project site to the Petitioners in terms of their passive recreational interest in an unobstructed view. Further, the fact that the dock would infringe on a long-accepted course of travel for boats, which is located some 50 feet or so beyond the end of the existing docks would cause both a navigational and recreational adverse impact in terms of the "public interest criteria" of Section 403.918(2), Florida Statutes. No other adverse impacts would be occasioned by installation of the dock, however, and these adverse impacts can be alleviated if the dock permit were conditioned upon an alteration so that the proposed dock does not extend more than 210 feet waterward of the mean high water mark. The proposed dock will not cause any significant, cumulative or secondary adverse impacts.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by DER granting the permit sought by Respondent Eckert on the condition that the dock proposed to be constructed, and for which the permit is sought, is restricted to a length of no more than 210 feet waterward of the mean high water mark at the Respondent/applicant's property, including that portion of the dock represented by the terminal platform. DONE AND ENTERED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1181 Petitioner Richard J. and Judith A. Wittig's Proposed Findings of Facts 1-17. Accepted. Petitioner Robert E. and Suzanne E. Stoyer's Proposed Findings of Fact 1-7. Accepted. Rejected as speculative and not supported by preponderant evidence. Accepted. Respondent DER's Proposed Findings of Fact 1-12. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Accepted. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted but not itself materially dispositive. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Coates, Esq. Pat Comer, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven E. Quinnell, Esq. JAMES L. CHASE, P.A. 101 East Government Street Pensacola, FL 32501 Robert E. and Suzanne E. Stoyer 5768 Red Cedar Street Pensacola, FL 32507 S.P. and P.A. Gallup 5660 Innerarity Circle Pensacola, FL 32507 E. P. Ericson 5652 Innerarity Circle Pensacola, FL 32507-8300 Philip E. Johnson 5794 Red Cedar Street Pensacola, FL 32507 Richard J. and Judith A. Wittig 11903 Autumnwood Lane Ft. Washington, MD 20744 Robert Eckert, Jr. 4817 Ravine Court Mobile, AL 36608
