Findings Of Fact Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings. 1. Manatee Protection Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee. Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase. At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11. Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760. Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that. The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No. 21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence. Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states: With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat. Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98. I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation. It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den., 344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974). Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation. However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980), rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760. There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413 So.2d 876 (Fla. 1982). In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied. Turtle Nesting Impacts Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence. For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes. Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it. Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected. Fisheries Impacts Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record. I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows: Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have? A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations. Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species? A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet. Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass? A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described. Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint? A. No. Q. Why not? A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added) Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr. Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb this finding of fact. Accordingly, the above noted exceptions are rejected. Seagrass Impacts Loss of Seagrass Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No. 33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34. Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost. The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged. Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22. The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant. MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it. Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS. Propeller Dredging of Seagrass Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34. Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied. Wading Bird Habitat Impacts Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr. G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied. Wetlands Impacted Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes. I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C. Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected. Water Quality Improvement Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38. I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300, F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards, and that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/ On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states: Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added) Similarly, Sarasota County stated in its opening argument at the hearing that: TR-14. We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest. The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/ The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied. Public Interest Balancing Test Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging." FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990). The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example: Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare); (b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.); FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling); FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity); FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project); FOF No. 28 (regarding historical and archaeological rsources); and FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project). The exceptions are therefore rejected. Miscellaneous Exceptions Sarasota County Exception No. 9 Sarasota County Exception No. 9 contends that there is no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No. 40 is supported in the record by competent, substantial evidence. The exception is denied. Sarasota County Exception No. 11 and MPS Exception No. 16 Sarasota County Exception No. 11 and MPS Exception No. 16 complain about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected. Sarasota County Exception No. 3 Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected. MPS Exception No. 1 This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected. MPS Exception No.2 MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant. MPS Exceptions No. 3 and 13 MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial. MPS Exception No. 9 MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707. MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system. FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected. Requests For Additional Findings of Fact Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me. Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test. Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108 and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception. Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9. Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v. Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988). Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected. MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Public Interest Test Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16. As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable. In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a): Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest. I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes. I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest. In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources. When I consider and balance all of these factors and their relevant facts, I conclude that the adverse impacts outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest. Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions. Water Quality Improvement Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4. Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error. Having ruled on all of the exceptions it is ORDERED: Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference. Sarasota County's Permit Application No. 581473069 is DENIED. NOTICE OF RIGHTS Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department. DONE AND ORDERED this 4 day of April, 1991, in Tallahassee, Florida. State of Florida Department of Environmental Regulation CAROL BROWNER Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County. DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991. APPENDIX TO CASE NO. 90-3533 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 19 are accepted. Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case. Paragraphs 25 and 26 are accepted. Paragraphs 27 through 29 are rejected as irrelevant. Paragraph 30 is accepted. Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record. Paragraphs 32 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 40 are accepted. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraphs 42 through 44 are accepted. Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case. Paragraphs 46 through 48 are accepted. Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative. Paragraphs 54 through 62 are accepted. Paragraph 63 is rejected as repetitive. Paragraph 64 is rejected as irrelevant. Paragraphs 65 and 66 are accepted. Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 68 through 73 are accepted.
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 17-room motel (Exhibit 5) and there are 15 available parking spaces. Petitioners propose to remove the seaward 16 feet of the existing 20-year-old dock, extend the remaining portion of this dock from its present length of 62 feet to 112 feet, and construct four finger piers two feet wide by 24 feet long extending seaward from this dock so as to provide seven boat slips. As private slips this would constitute a Class A marina. Petitioners intend to convert the existing motel from sole ownership (husband and wife) to a cooperative association which will enter into long-term leases with proprietary lessees who purchase shares in the association. Specifically, the current owners will transfer title to the property to Tropical Palms Development Corporation, who in turn will transfer the property to The Bel Crest Beach Cabanas & Yacht Club, Inc., who will sell the leases (Exhibits 2 and 3). A copy of the Proprietary Lease proposed for use in this endeavor was not presented to the Board of Adjustment and Appeal on Zoning, nor was the By- Laws of The Bel Crest Beach Cabanas & Yacht Club, Inc. These documents were presented at this hearing as Exhibits 4 and 5. The Proprietary Lease (Exhibit 4) provides the dock is appurtenant to the unit and may not be conveyed, leased or subleased independent of the unit. Slips 1-7 are assigned to Units 7, 8, 9, 10, 11, 16 and 17, respectively (Exhibit 5). Petitioner Leonhardt testified that he would never allow the motel unit to be leased independent of the slip appurtenant to that unit. He also testified that the boat slips got little use from motel occupants. The existing dock, which is 62 feet long, contains berthing space for three or four boats, depending on the size of the boats. No evidence was presented concerning the parking problem, if any, resulting from the existing docking facilities. Respondent's primary concern and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip, Class A marina was granted to the Sea Gull Motel located some 300 feet west of the Bel Crest motel less than one year ago. The Sea Gull converted to cooperative ownership in a plan similar to that proposed by Petitioners. At the Sea Gull hearing for a special exception the parking situation on Clearwater Beach was not raised. Item 40 of the Proprietary Lease (Exhibit 4) contemplates more than one person may be named as lessee and provides joint lessees have only one vote, are jointly and severally liable for lessees' obligations, etc. Nowhere does the Proprietary Lease or By-Laws of the Association specifically preclude one owner- lessee occupying the boat slip while another owner-lessee occupies the motel unit. Once converted to a cooperative, the Bel Crest will continue to operate as a motel run by the resident manager with the units owned by the shareholders in the Association. Currently, all units of the motel are owned by a single owner. The By-Laws and Proprietary Lease do not fully cover the situation regarding the boat slip when the unit appurtenant to that boat slip is rented by the usual overnight motel guest who has no use for a boat slip. The proposed slips present no hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the boating public.
Findings Of Fact On September 23, 1983, Hollywood submitted a permit application to DNR for construction of the proposed project which is the subject matter of this proceeding. DNR designated that permit application as Permit Application 50-41. The proposed project is actually the first phase of a two-phase project, Phase II of which has already been permitted by DNR. Phase I, which is the subject of Permit Application 50-41, consists of an extension of existing Surf Road in the City of Hollywood, an extension of an existing asphalt boardwalk, construction of a parking area with landscaped island, swale, and associated lighting. The excavated fill removed from the site of Phase I is to be used in the construction of a dune which is encompassed within Phase II of the project. The properties on which Phase I and Phase II are to be constructed are owned by the City of Hollywood and are located seaward of the Coastal Construction Control Line and landward of the Erosion Control Line. The Summit Condominium is a condominium development located west of South Surf Road in the City of Hollywood, and is directly adjacent and contiguous to the property upon which the aforementioned project is to be constructed. Petitioner is the builder and developer of the Summit Condominium and, in addition, is the fee simple owner of approximately 15 units in that development. Phase I of the proposed project, which is the permit application at issue in this proceeding, provides for the construction of a 121-space public parking area which will be approximately 62 feet wide and 605 feet long, and will extend approximately 95 feet seaward of the Coastal Construction Control Line. The parking lot will be constructed with a six-inch limerock base over a six-inch crushed limerock subbase, and will be surfaced with a one and one-half- inch asphalt wearing course. The parking lot is designed with a definite landward slope, so that stormwater will sheet flow across the parking lot away from the dune system. There is no evidence of record in this proceeding which would in any way justify a conclusion that stormwater runoff from the parking lot area will have any adverse effect on the dune system seaward of the lot. Stormwater runoff once it has left the parking lot surface will be collected in a swale and drainage ditch system located landward of the paved parking lot surface. The drainage ditch will be composed of sandy material presently located on the site and is designed on a 1.2 to 1 slope. In addition, Wedelia is to be planted in and around the drainage ditch system in order to stabilize the slopes of the ditch. The ditch and swale system is designed to allow most stormwater runoff to percolate into the soil, with any excess being collected in the ditch itself and transmitted in a northerly direction. A drainage calculation study prepared in conjunction with this proceeding demonstrates that the drainage capacity for the proposed ditch meets minimum standards contained in the South Florida Building Code, as applied by the City of Hollywood. As the ditch fills with stormwater, the water will flow in a northerly, shore parallel direction to Jefferson Street, which is located north of both the proposed project and the Summit Condominium. From Jefferson Street, runoff from the project site will flow westerly to Highway A-1-A where an existing stormwater sewer system is located. If for some reason that system proves insufficient to handle runoff, the runoff will then travel across A-1-A into the intracoastal waterway. There is no competent evidence of record in this proceeding to demonstrate that stormwater runoff from the project site will, under any conditions, flow onto Petitioner's property. Phase I of the project has been designed to minimize the potential for the creation of aerodynamically or hydrodynamically propelled missiles in the event of a major storm. The asphalt surface of the parking lot is designed to break into chunks which will settle into the sand or water when exposed to wind and water forces. The parking meters are set four feet into the ground which reduces their potential to act as missiles, but even should the beach recede to the point where the meters are installed, evidence of record in this proceeding establishes that they will fall to the base of the eroded dune wall and will be washed out to sea rather than be propelled shoreward either by water or air. Various storm surge computer models for pre- and post-construction conditions at various locations on the property were performed. The result of these models shows that there will be no difference in impact on the beach dine system and adjacent property between the pre- and postconstruction profiles in the event of a ten-year storm. Further, computer models actually showed that there will be less erosion for the post-construction profile than for the preconstruction profile in the event of a twenty-year storm surge. In the event of a fifty-year or greater storm event, the beach profile for both pre- and postconstruction in the project area would be inundated, so that the impact of such a storm will be the same with or without the proposed construction. Evidence of record does, however, establish that based upon postconstruction conditions as proposed in the permit application it would take a greater storm to erode material from the postconstruction profile, thereby establishing that the proposed project will afford greater protection than existing topography. It appears from the record in this proceeding that Hollywood's Permit Application 50-41 is complete, and that DNR has in its possession all information necessary and required by law for the processing of the permit application. Engineering plans submitted in support of the application for Phase T have been signed and sealed by a professional engineer registered in the State of Florida.
Recommendation RECOMMENDED That a Final Order be entered by the State of Florida, Department of Natural Resources, granting the requested permit. DONE AND ENTERED this 25th day of October, 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 25th day of October, 1983. COPIES FURNISHED: Steven L. Josias, Esquire Donald J. Dooty, Esquire 3040 East Commercial Boulevard Fort Lauderdale, Florida 33308 Deborah A. Getzoff, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Leonard Lubart, Esquire Post Office Box 2207 Hollywood, Florida 33022 Elton J Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor. Petitioner has timely sought review of the Planning and Zoning Board decision. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
The Issue Whether Petitioner should be granted conditional use approval to sell beer and wine at his restaurant located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater, Florida.
Findings Of Fact On or about August 27, 1990, Petitioner filed an application for conditional use approval with the Planning and Development Department of the City of Clearwater to permit the sale of beer and wine for on-premise consumption at a restaurant known as Britt's Beachside Cafe located on Petitioner's property at 201 South Gulfview Boulevard, on Clearwater Beach, in the City of Clearwater. The subject property is zoned CR-28. Within that zoning district classification, the sale of alcoholic beverages for consumption on the premises is allowable upon detaining a conditional use approval. However, all such alcoholic beverage sales for consumption on the premises shall be located in a hotel or motel in conjunction with a 4-COP-S license or within a restaurant deriving 51 percent or more of its gross revenue from the sale of food and nonalcoholic beverages. The subject property is improved and is presently used as a restaurant, the present restaurant use contains 2170 square feet of gross floor area and requires 11 parking spaces. The parking space calculation was made according to the formula of one space per 200 square feet of gross floor area, the general parking formula for restaurants, with a 50 percent reduction allowed for Clearwater Beach locations. The Petitioner proposes to enlarge the restaurant by adding outdoor seating, increasing the use area to 2500 square feet, and adding the sale of beer and wine for consumption on the premises. This will increase the required parking spaces to 32. Eating and drinking establishments licensed by the State of Florida for on-premise consumption of alcoholic beverages require 2 1/2 times the parking space required for a restaurant not serving alcoholic beverages for on-premises consumption. Petitioner operated a restaurant very similar in size and menu serving beer and wine in a larger hotel with a smaller parking lot approximately 60 feet north of the subject property for 3 1/2 years before he lost his lease and moved to the subject premises. Petitioner operated his former restaurant with essentially the same number of parking spaces without incident and with no complaints addressed to any agency of the City of Clearwater. The denial of Petitioner's conditional use was based solely upon the number of available parking Spaces, as Petitioner met all other requirements of the Code for the conditional use requested. A waiver of the required parking spaces can be granted only by the Development Code Adjustment Board, while conditional use approval is made by the Planning and Zoning Board. The Adjustment Board will not consider Petitioner's request for waiver of the parking requirements until after he has obtained conditional use approval from the Planning and Zoning Board. Accordingly, Petitioners find themselves a catch-22 situation.
The Issue The issue is whether Petitioners' application for site plan approval for a proposed renovation and addition to their restaurant should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this local land use dispute, Petitioners, Ypapanti and Sevasti Alexiou, who operate a restaurant under the name of Frenchy's Rockaway Grill, have appealed a decision by the Community Development Board (Board) to deny an application to renovate and expand their restaurant located at 7 Rockaway Street, Clearwater Beach, Florida. The Board, which is made up of seven local residents, acts as the local planning agency for Respondent, City of Clearwater (City). Although the City staff supports the project, the City is technically opposed to the application since the Board failed to approve the project by a 3-3 tie vote. In denying the application, the Board rejected the City staff's recommendation that the application be approved. Intervenor, Hunter Hotel Company, owns and operates a hotel known as Clearwater Beach Hotel which is contiguous to, and south of, Petitioners' property. It objects to the application on the grounds that "the criteria for the flexible development approval were not met nor proved, [and] that the relief requested [by Petitioners] is of such a magnitude that it is not warranted and cannot be allowed under the Code." As further clarified by Intervenor, the City's parking shortage in the Beach area is the "core issue on this appeal." Until the City solves the parking problem, Intervenor suggests that there should be a moratorium on development in the Beach area. Petitioners own and operate a popular and successful one-story restaurant and bar on a 0.38-acre lot at 7 Rockaway Street, Clearwater Beach, which fronts directly on the Gulf of Mexico. The property is zoned as a part of the City's Tourist District and is bounded by the Gulf of Mexico on the west, a municipal parking lot to the north, a motel on the east, and the Clearwater Beach Hotel on the south. Due to the small size of their lot, Petitioners seek to vertically expand their restaurant by adding a second story consisting of 3,487 square feet, including an approximately 2,300 square foot open deck and 1,200 square feet of enclosed area. Both sections will accommodate bar patrons and diners. Petitioners also intend to remove and replace a 945 square foot storage room attached to the south side of the building which is structurally unsound. To accomplish these changes, Petitioners will need "flexibility" in meeting setback and parking requirements. Because more than 95 percent of the City is now "built out," and very little land is vacant, the City has adopted comprehensive infill criteria for non-conforming structures, such as Petitioners' restaurant. The criteria which apply to Petitioners' project are found in Section 2- 803C. of the City of Clearwater Redevelopment Code (Code) and allow flexibility in promoting redevelopment and infill throughout the City, including the Clearwater Beach area. As pointed out by City staff, infill projects are often used on Clearwater Beach because there are so many non-conforming structures in that area. In determining whether a project should be given flexibility as an infill project, the City evaluates the proposed project against its infill criteria. Strict compliance with all criteria is not required, but rather the criteria are weighed or balanced collectively. If a project cannot meet a "significant number of [criteria], or a significant one in a meaningful way," then an applicant "would have problems [with gaining approval]." Once a project qualifies as an infill project, an applicant may then use flexible development standards for setbacks, height, size, and minimum off-street parking. In this case, Petitioners seek flexibility for setback and off-street parking requirements. As noted earlier, the main concern raised by Intervenor centers around item 9. of the criteria, which reads as follow: 9. Adequate off-street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development. Intervenor contends that this criterion was not satisfied, and thus the project cannot qualify as an infill project. In addition, in its Proposed Final Order, the City contends that Petitioners have failed to satisfy items 1. and 5., which read as follows: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; 5. Suitable sites for development or redevelopment of the uses or mix of uses within the comprehensive infill redevelopment project are not otherwise available in the City of Clearwater. Table 2-803 of the Code establishes minimum off- street parking requirements of 7 to 15 parking spaces per 1,000 square feet for restaurants in the Tourist District. Therefore, a restaurant of Petitioners' size (that was not an infill project) would be required to have at least 47 off- street parking spaces. In actuality, Petitioners have only 13, due to a variance having been previously granted. Since Petitioners intend to add around 3,400 square feet through the second floor addition, the Code would normally require a minimum of 24 additional parking spaces, or a total of 71. However, these off-street standards do not apply to infill projects. Instead, another provision in Table 2-803 of the Code provides that minimum off-street parking for infill projects shall be "[d]etermined by the community development coordinator based on the specific use and/or ITE [Institute of Transportation Engineers] Manual standards." Therefore, using the guidelines in the foregoing provision, the community development coordinator determines the number of additional off-street parking spaces, if any, that an infill project will require. Because the City staff concluded that a parking study would assist it in analyzing the specific use of the property, it requested that Petitioners perform a parking study. The study was conducted by Robert Pergolizzi, a certified planner, who has performed a number of parking studies during his career. The Code does not describe any criteria for a parking study for an infill project. Therefore, the staff looked at other sections of the Code in arriving at a methodology to be used for the study. More specifically, it first considered Section 2-803J.6.a., which provides in part that off-street parking requirements can be relaxed if "the physical characteristics of the proposed building are such that the likely uses of the property will require fewer parking spaces per floor area than otherwise required." Because the restaurant sits directly on the beach, the staff believed that the primary destination of many of the customers was the beach, and not the restaurant, and that the visit to the restaurant was a side trip by the customers. Thus, the parking study methodology was designed, in part, to confirm or disaffirm that assumption. Section 2-803J.6.c. also provides flexibility in off-street parking requirements if "adequate parking is available on a shared basis as determined by all existing land uses within 1,000 feet of the parcel proposed for development, or parking is available through any existing or planned and committed parking facilities." The staff used this section of the Code to determine that 1,000 feet was an appropriate distance to analyze available parking for a restaurant. Therefore, Pergolizzi was directed by the staff to analyze available parking within 1,000 feet of the restaurant. Pergolizzi conducted his study on August 25 and 26, 2000, the Friday and Saturday which preceded the Labor Day holiday weekend. It is undisputed, and the parties have stipulated, that Pergolozzi conducted the study entirely consistent with the agreed methodology. The study confirmed that the primary destination of 49 percent of the restaurant's customers was the beach, and not the restaurant. In other words, the expansion would not affect the parking demand generated by almost one-half of the customers. The study also confirmed that there was available parking within 1,000 feet of the restaurant to accommodate not only the existing business, but the proposed expansion as well. As noted above, Table 2-803 of the Code required that the community development coordinator determine the minimum off-street parking after consideration of the specific proposed use and/or the ITE Manual standards. Here, the City staff looked at the specific use, the ITE Manual standards, and the parking study to determine the minimum off-street parking required for the restaurant. It concluded that there was available parking within 1,000 feet of the restaurant and that no additional parking spaces were required. The community development coordinator concurred with the results of the study and analysis and likewise determined that the minimum off-street parking for the project were the existing 13 spaces. This determination was wholly consistent with the requirements of the Code. In recommending to the Board that the project should be given flexibility as an infill project, the staff's report contained the following conclusion: The proposal is in compliance with the standards and criteria for flexible development approval, with maximum development potential, requirements of the Comprehensive Infill Redevelopment Projects, and with all applicable standards of the Community Development Code. A more detailed analysis of how each of the ten criteria were satisfied is found in Petitioners' Exhibits 9 and 14 received in evidence. At the hearing on March 27, 2001, the City's assistant planning director also established that the proposed expansion and renovation complied with all applicable standards of the Code. Intervenor's expert witness, Gail Easley, a certified planner, questioned whether the methodology used by Pergolizzi complied with the Code. More specifically, she contended that the City was required to determine minimum off- street parking for infill projects in the manner described in Section 2-803C.9. That section provides that "[a]dequate off- street parking in the immediate vicinity according to the shared parking formula in Division 14 of Article 3 will be available to avoid on-street parking in the immediate vicinity of the parcel proposed for development." If this contention were true, however, it would render meaningless the provision in Section 2-803C.8., which provides that "[f]lexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character in the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole." In other words, there would be no flexibility for off-street parking as permitted by that section. This would be contrary to the very purpose of infill projects. Witness Easley's interpretation is also inconsistent with Table 2-803, which states that "minimum off-street parking will be determined by the community development coordinator based on the specific use and/or ITE Manual standards." Under her interpretation of the Code, the community development coordinator would have no right to determine minimum off-street parking for infill projects based on the specific use and/or ITE Manual standards, despite clear language in the Code to the contrary. More importantly, the criteria in Section 2-803C., including item 9., are used to determine whether a project should be considered an infill redevelopment project under the Code. Item 9. is simply one of those criteria, and it does not establish minimum off-street parking requirements for an infill project. Witness Easley also opined that it was inappropriate for the parking study to consider on-street parking. However, the Code does not prohibit the community development coordinator from requesting a parking study which includes on- street parking. It only requires that he consider the specific use and/or ITE manual standards when determining off- street parking for an infill project. Other contentions that the methodology was flawed, including a concern about the date and time of the study and the use of 1,000 feet as a measuring stick for available parking, have been considered and found to be without merit. A contention was also made that certain other infill criteria were not met. However, there was no evidence to support these contentions, and the more persuasive evidence supports a finding that all criteria have been satisfied, and that Petitioners qualify as an infill project. The undersigned has also considered the testimony of the owners of two competing restaurants who object to the project. While they contended that the lack of parking motivated their opposition to the application, it is fair to infer from their testimony that they object mainly because they fear that Petitioners may capture some of their business through an expansion of their restaurant. Finally, in its Proposed Final Order, the City has contended that Petitioners have failed to satisfy a general standard contained in Section 3-913A.6., which requires that an applicant ensure that: [t]he design of the proposed development minimizes adverse effects, including visual, acoustic and olfactory and hours of operation impacts, on adjacent properties. Given the modifications agreed to by Petitioners in the following Finding of Fact, the requirements of this section have been met. In the nature of an affirmative defense, Petitioners have raised the issue of equitable estoppel and contend that Intervenor should be estopped from opposing the application. The facts underlying this argument are as follows. On November 21, 2000, the Board heard testimony and considered the application for the first time. At that meeting, Intervenor's counsel represented to the Board that "my client's concern is not the parking. My client's concern is because of proximity of noise and light intrusion." In light of these concerns, counsel for Petitioners and Intervenor reached an agreement wherein Petitioners agreed to limit the addition to the northern one-half of the existing building, construct an 8-foot concrete block wall on the south property line between the restaurant and the hotel, close the upstairs addition at 10:00 p.m. on week nights and 11:00 p.m. on Fridays and Saturdays, place no outside speakers and allow no live music on the upstairs addition, and direct upstairs lighting away from the hotel. With these accommodations, counsel for the hotel represented to the Board that "if [the Board] approve[s] this, you have addressed our primary areas of concern." After the close of public comments, the Board voted to approve the application by a 3-2 vote. Because four votes are required to approve an application, and one member was absent from the meeting, the matter was continued to the next meeting on December 12, 2000. By letter sent to Petitioners' counsel on December 5, 2000, Intervenor's counsel identified the "commitments at the preceding hearing, which [Petitioners were] willing to make to the Clearwater Beach Hotel." Upon receipt of that letter, Petitioners advised the City by letter that they were in agreement with Intervenor's counsel that "these are the conditions agreed to at the last CDB meeting, which shall be binding upon my client." Notwithstanding earlier representations, by letter dated December 7, 2000, counsel for Intervenor indicated that "the owners of Clearwater Beach Hotel have instructed us to object to the pending application. Upon further review, prompted by the renderings, the magnitude of this project is simply too great for the size of the property." The letter further stated that it was to be considered "as withdrawal of our prior letter and position of 'no objection,'" and that Intervenor would attend the December 12 hearing "to formally object." Petitioners have further contended that Board member William Johnson had ex parte communications with some of his neighbors concerning the merits of this application, and this constituted a departure from the essential requirements of the law. Section 4-206D.2. of the Code provides that "no member of the community development board or the city commission shall engage in any ex parte communications with any person in regard to the substance of a quasi-judicial matter which is to be considered by the board or commission, as the case may be." If such communications occur, Section 4-206D.3.a. requires that a member disclose these communications at the meeting. There is no record of any disclosure being made. At the first Board meeting on November 21, 2000, member Johnson had moved for approval of the application. Without any explanation, at the second meeting on December 12, 2000, he voted against the application. Member Johnson did not testify at hearing to confirm or deny Petitioners' allegation of wrongdoing. However, witness Pergolizzi testified that he spoke with member Johnson just after the December 12 meeting, at which time member Johnson allegedly admitted that he had such conversations with his neighbors and was sorry for his change of vote. But the out-of-court statements of member Johnson are hearsay in nature, do not supplement or explain any other competent evidence on this issue, and they cannot form the basis for a finding of fact.
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
