Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
The Issue The issue on appeal is whether, pursuant to Clearwater Code of Ordinances Section 4-505, to sustain or reverse, with or without conditions, the decision of the Community Development Board on June 20, 2003, denying Cepcot Corporation's application to build a convenience store with two islands for pumping gas.
Findings Of Fact Petitioner The Cepcot Corporation (Cepcot) owns real property located at 657 Court Street in the downtown zoning district of the City of Clearwater (Property). On December 17, 2002, Cepcot filed a Flexible Development Application for a comprehensive infill redevelopment project (Application) on the Property. At the time of the proposal, the Property, which comprises 0.95 acres, was developed with a restaurant in a building that was the former Clearwater train station, a thrift store, and a park. The Application proposes the demolition of these improvements and their replacement with a 3200 square-foot convenience store and two gas pump islands. The Property fronts Chestnut Street to the south, East Avenue to the east, and Court Street to the north. The surrounding area is developed with office uses to the west and south, a privately owned utility plant to the north, and warehouse uses to the east. Upon the completion of the Memorial Causeway bridge, which is presently under construction, traffic to the beach will use Court Street and traffic from the beach will use Chestnut Street. In response to questions and suggestions from Respondent's staff, Cepcot revised the proposed site plan several times. The Application is presently complete. Respondent's Planning Department prepared a Staff Report, which finds that the proposed project does not meet certain requirements and recommends denial of the Application on several grounds. On June 17, 2003, Respondent's Community Development Board (CDB) considered the Application. CDB denied the Application and issued a development order explaining the reasons for denial as follows: The proposal is inconsistent with the adopted Community Development Code, the Comprehensive Plan, 1995 Clearwater Downtown Redevelopment Plan, and the Downtown Design Guidelines. The proposed automobile service station is not a permitted use within the downtown district. Approval of the proposed use may encourage other like uses and may be detrimental to downtown redevelopment. The proposal does not comply with the Flexible Development criteria as a comprehensive infill redevelopment project per Section 2-803. The proposal is not in compliance with the other standards in the Code including the general applicability criteria for Section 3-913. Most of the reasons cited for denial involve Respondent's Community Development Code (CDC), which is the land development regulations. The Property is in the Downtown District. CDC Section 2-901 states: "The intent and purpose of the Downtown District is to establish a mixed use downtown where citizens can work, live, and shop in a place which is the economic, governmental, entertainment and cultural focal point of a liveable city." CDC Section 2-902 sets forth the permitted uses within the Downtown District, and CDC Chart 2-100 lists permitted uses by zoning district. The proposed uses are not among the permitted uses for the Downtown District (or the Tourist District, to which portions of the record refer). CDC Section 2-903.C sets forth the following ten criteria to be applied in determining if the proposed use qualifies as a Comprehensive Infill Redevelopment Project (CIRP) that may qualify an otherwise non-permitted use: The development or redevelopment of the parcel proposed for development is otherwise impractical without deviations from the use, intensity and development standards; The development of the parcel proposed for development as a Comprehensive Infill Redevelopment Project will not reduce the fair market value of abutting properties; The uses within the comprehensive infill redevelopment project are otherwise permitted in the City of Clearwater; The uses or mix of uses within the comprehensive infill redevelopment project are compatible with adjacent land uses; 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; The development of the parcel proposed for development as an comprehensive infill redevelopment project will upgrade the immediate vicinity of the parcel proposed for development; The design of the proposed comprehensive infill redevelopment project creates a form and function which enhances the community character of the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; Flexibility in regard to lot width, required setbacks, height and off-street parking are justified by the benefits to community character and the immediate vicinity of the parcel proposed for development and the City of Clearwater as a whole; 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; The design of all buildings complies with the Downtown District design guidelines in Division 5 of Article 3. CDC Section 3-913.A sets forth the General Applicability criteria. CDC Section 3-913.A.1 states: "The proposed development of the land will be in harmony with the scale, bulk, coverage, density, and character of adjacent properties in which it is located." CDC Section 3-913.A.5 states: The proposed development is consistent with the community character of the immediate vicinity of the parcel proposed for development."
Findings Of Fact The Petitioner is the owner and operator of several businesses on Clearwater Beach, including two "fast-food" facilities which serve primarily recreational beach visitors. Petitioner owns property on the northeast corner of Marian and Mandalay Streets on the beach. Marian Street is a one-way highway which terminates at Mandalay Street. It is the eastern terminus of State Road 60 and provides the main access to Clearwater Beach from mainland locations. Mandalay Street is a four-lane street which serves as the primary north-south artery on Clearwater Beach. The intersection of Marian and Mandalay Streets is the busiest intersection on Clearwater Beach. There are a traffic light and a pedestrian light at the intersection. Petitioner purchased the property at the northeast corner of the intersection in 1974. A two-story building occupies the property and covers over half of it. The building fronts on Mandalay Street. There are two commercial facilities on the first floor, one of which is presently not occupied. There are five apartments on the second floor, all of which are occupied. There are numerous commercial facilities to the north of Petitioner's property along the same side of Mandalay Street. These are primarily shops which cater to the beach-going public, and small restaurants. To the east of Petitioner's property, there is a mixture of commercial uses, primarily motels. There is a Holiday Inn motel across Mandalay Street. Petitioner's property lies within a zoning district which is classified "GB" or "General Business." The property is classified in the City's plan as commercial/tourist. Retail business uses, restaurants, motels, or high-density residential uses would all be appropriate under the "GB" zoning classification and under the City's plan. Petitioner proposes to remodel the building on his property and to operate a "fast-food" restaurant facility in it. The Petitioner proposes to place food preparation and service areas on the ground floor with some stand-up eating locations, and to place most of the seating on the second floor. The second floor would serve as a dining porch with good views of the beach area. The Petitioner has not decided whether he would seek to serve as a franchisee of some national food service organization. The Petitioner would not have any "drive-in" facility connected with the restaurant. Petitioner's property is a good location for a fast-food restaurant because it is at a highly visible location, the busiest intersection on the beach; and because it is readily accessible to the beach-going public, being located across the street from the beach. There is a very favorable prospect that a fast-food operation on the property would provide the Petitioner with a favorable return on his investment. There are five parking spaces located on the Petitioner's property adjacent to the building. Petitioner proposes to utilize the same five parking spaces to serve his proposed restaurant. Under the City of Clearwater's building and zoning regulations, persons who operate restaurants are required to provide suitable parking areas to accommodate employees and customers. The regulations require that parking spaces be provided based upon the number of employees and based upon the number of fixed seats or the square footage of the restaurant. In order to operate the restaurant that he proposes, the Petitioner would be required to provide 68 spaces under the City's building and zoning regulations. Petitioner is seeking a variance from these requirements which would allow him to provide only five parking spaces. There is considerable public parking located within close proximity to the Petitioner's property. There are approximately 1,500 metered parking spaces maintained by the City within four blocks of the property. The purpose of these spaces is not, however, to serve commercial enterprises, but rather to serve the beach-going public. While there are many such spaces, they are frequently filled during peak beach-going periods. To use the public parking facilities as parking for the Petitioner's proposed restaurant, customers would need to cross one or more streets. Petitioner contends that his proposed restaurant would not itself serve as a draw to the beach, but rather that his customers would be people who have already come to the beach. Petitioner contends therefore that there will be no additional demand for parking caused by his facility, and that he should not be required to provide any. While it is true that a "fast-food" sort of facility is not likely to serve as a substantial draw to the beach, it is also true that the Petitioner is predicting success for his facility based upon its highly visible location. It is likely that persons going to the beach would notice the restaurant and seek nearby parking locations. This would increase the demand for parking facilities in the area and would increase both vehicular and pedestrian traffic at what is already the busiest intersection on the beach. The parking problem on Clearwater Beach is not new. During peak demand times, there has been a shortage of parking for many years. The parking shortage is not one that affects only the Petitioner's property. Any business located on Clearwater Beach would have the same difficulties that Petitioner has. The difficulties are caused by lack of available land for providing parking spaces, and by the high demand for the land that is available. For the Petitioner to provide parking that would comply with the City's zoning regulations, he would need to acquire approximately four-tenths of an acre of property. The cost of such an acquisition would be prohibitive. The same problem would exist for any business person in Clearwater who proposes to operate a restaurant. It is not a problem that is unique to the Petitioner's property. There are a number of restaurants located on Clearwater Beach which do not provide parking facilities that would comply with the City's zoning regulations. There are at least two such restaurants in close proximity to the Petitioner's property. It appears that all of these restaurants were in operation prior to the adoption of the City's zoning regulations. While there was testimony that variances of the sort being sought by the Petitioner were once commonly granted, there was no competent evidence to support the contention. It does not appear that the City has enforced its zoning regulations in other than a uniform manner.
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact By application (Exhibit 1) dated September 15, 1978, WCMI requested a permit to dredge approximately 740 cubic yards of sovereign bottom lands in Snook Bay adjacent to upland property owned by applicant. At the same time applicant requested a lease of some 0.98 acres of submerged sovereign land, containing the area to be dredged, for the purpose of constructing a marina with docking facilities over the leased property. Following receipt of all requested information from applicant, plus objections from adjacent land owners, DNR, as the state agency acting on behalf of the Trustees Internal Improvement Trust Fund (TIITF) , held a public hearing in Naples, Florida on April 25, 1979. The Hearing Officer submitted a report following this hearing in which he recommended the lease be granted (Exhibit 4). After review DNR staff recommended granting the lease and before the Trustees took action, Petitioner requested this hearing. In the interim DER reviewed the application for a dredge and fill permit and, following a preliminary investigation, advised WCMI of its intent to deny the permit (Exhibit 8). At informal conferences with DER, WCMI revised its application to commence the dredging 25 feet from the existing seawall, reduce the amount of material to be dredged to 349 cubic yards and to move the floating dock sections further from the seawall. This revised application (Exhibit 10) was submitted to DER and, after review, DER on November 13, 1979 (Exhibit 11) issued its notice of intent to grant the requested permit. Petitioner then requested this hearing to contest the granting of this permit. The Isles of Capri was developed into a waterfront homesite project by bulkheading, dredging and filling a pristine mangrove area to provide the homesites now occupied by members of Petitioner. This project destroyed the ecosystem as it existed before the development. The area which is here proposed for lease and for a permit to dredge some 349 cubic yards therefrom is located in the originally disturbed area. Most of the homes on the Isles of Capri are built on waterfront lots and most homeowners have docks and boats. Fishing is generally considered good off the docks and in surrounding waters. The proposed marina is located in Snook Bay, a relatively small cul-de-sac-like area. On the dead end of Snook Bay, which is adjacent to the proposed marina, mangroves have been planted and the area designated as a park. Since these mangroves are rat infested, the park concept has not received general acceptance. However, the proposed marina will not adversely affect this park. Apart from the ecological problems that will allegedly be created by the leasing of the property and the dredging thereon, petitioner alleges the project will interfere with other "rights" of the homeowners of the Isles of Capri. Although this Hearing Officer has considerable doubts as to the validity of these alleged rights, the facts presented relating thereto will be first considered. WCMI owns the uplands adjacent to this submerged land and this land is zoned General Retail Commercial, which includes use as a proposed marina. Use as a marina would create less additional vehicular traffic than would any of the other 12 uses considered most likely for this land. (Testimony of Barr) The proposed marina will provide wet dock space for 32 boats and dry storage for 116 boats in sheds with the boats stacked three-high. No ramps will be provided and boats will be launched and picked up by use of a forklift at the concrete seawall. Parking space for 54 vehicles will be provided. This parking space complies with local requirements, as does WCMI's proposed construction. Collier County and the area of Collier County in the vicinity of Isles of Capri is an area of rapidly increasing population. A need for some six additional marinas has been recognized by Collier County authorities. Numerous witnesses opposed the use of WCMI property as a marina because: They do not think the site is suitable for a marina, and a much smaller marina would be preferred. Installation of a marina would increase boat traffic, thereby increasing the risk of boat collisions, increase wake action which might damage seawalls, disrupt the peace and quiet now enjoyed by these residents, and increase the possibility of boats striking manatees. Property values in the vicinity of the proposed marina and elsewhere in the Isles of Capri might decline. Operation of a marina would increase the noise level, thereby disturbing occupants of residences closest to the proposed marina. Vehicular traffic would be greatly increased on the Isles of Capri once the marina commences operation. Most of these objections are beyond the jurisdiction of this tribunal. This property has been zoned for the use proposed and if this use is inappropriate, the proper recourse is with the local zoning authorities. The credible evidence submitted is that the operation of the marina would increase boat traffic in and out of Snook Bay some 20 round-trips per day and this increase will create and insignificant additional risk of collision with other boats or with the occasional manatee that is sighted. While most of this traffic will use the deeper channel that follows the seawalls and boat docks of residents, an alternate channel is available for use by boaters with local knowledge of its characteristics. Even if all traffic used the deeper channel, no serious hazard to navigation would thereby result. No credible evidence was presented that the increased boat traffic caused by the marina would increase the damage to a properly constructed seawall. Navigation of these waters is a right to be jealously guarded. If wave damage results, local authorities have jurisdiction to establish speed or wake restrictions. Furthermore, the more credible evidence presented was that at the Isles of Capri more subsidence of soil behind the seawalls is caused by tidal action than by wake action. No credible evidence was presented that the operation of the proposed marina would decrease property values. Even if this could be shown, such a use would be consistent with the usage for which this property is zoned. There are two marinas across the street from WCMI's proposed marina and no evidence was presented that the operation of ties smaller marinas affected property values. The uncontradicted evidence that was submitted was that property values on the Isles of Capri have increased at a rate as great as, if not greater than, land values elsewhere in Collier County. The roads on Isles of Capri are presently operating far below capacity and the additional traffic expected to be generated by the proposed marina will have no significant impact on these roads, nor will the construction of the marina create any vehicular safety problems. Petitioner's contention that the construction and operation of the marina will create additional pollution because of septic tank, oils and greases, and water runoff from impervious surfaces is not well-placed. It is not well-placed in the first instance because this is not the proper forum in which to air these complaints. Local health and safety ordinances regulate the installation of septic tanks, installation of fueling facilities and retention of water falling on the property. Secondly, the evidence presented here is that WCMI will comply with all regulations regarding septic tanks, no live-aboard boats will be moored at the marina other than temporarily for fuel or supplies, fuel tanks will be underground on the upland area, provided with proper protection and insulation, and the fuel will be dispensed by hose from the fueling dock by experienced personnel. WCMI will provide containment booms and retrieving material to take care of the accidental spill that might occur. Collier County Ordinance requires the first 1-inch of rainfall be retained on the property and WCMI will comply with this requirement. From the testimony of the numerous residents who testified, the primary concern of most of those who object to the proposed installation is that "their" waters will become more available to people living elsewhere and this will somehow detract from the use and enjoyment of those waters by these residents. If access to the Isles of Capri is facilitated for people living elsewhere by the installation of this marina, these waters will become more crowded, resulting in less fish per resident, and this aquatic preserve will become less private and more available to the general public. These residents purchased their homesites because of the waterfront characteristics and the quietness and solitude of the area. Facilitating access by nonresidents will necessitate sharing these waters with these nonresidents, thereby detracting from the enjoyment residents hoped to retain undiminished forever. The allegations of Petitioner that merit the most serious consideration in both of these applications of WCMI involves those relating to the ecosystem. Petitioner contends that the proposed dredging will adversely affect the ecosystem and this requires denial of the dredge-and-fill permit. Without the permit the lease would be useless. Petitioner also contends the granting of the lease would be contrary to the public interest. WCMI's original application was to dredge from the seawall seaward some 60 feet until the desired depth contour was reached. Also, floating concrete docks would be adjacent to the seawall for berthing sites. When an inspection of the area disclosed the bottom grasses were heaviest from the seawall out to about 30 feet, the applicant was issued the Notice of Intent to Deny by DER because of these bottom grasses and the shading that would be caused by the floating docks. WCMI then proposed to do no dredging for the first 25 feet from the seawall, except for two areas 30 feet and 36 feet wide needed to launch boats, and also to move the floating docks 25 feet from the seawall so as not to shade the grassy areas. As noted above, the site under consideration was severely disturbed by the initial dredging which destroyed the original grassbeds at this site. Some of these grasses have now returned but the coverage is sparse and patchy. From the seawall out to about 30 feet the grass is Cuban shoalweed and manatee grass. Respondent's investigations and studies revealed only these two grasses. Petitioner's biologist who performed studies similar to those done by Respondent found halophila in the deeper waters (up to five feet) extending out as far as 60 feet from the seawall. Halophila is a more ephemeral grass that grows in deeper depths than Cuban shoalweed and manatee grass and is often found in previously dredged areas. The area proposed for dredging comprises some 1200 square meters, and seagrasses cover about one-fourth of the dredge area. Sample cores taken by Petitioner's expert in October while the more luxuriant summer growth predominated showed some 1600 blades of grass per square meter, while the winter sample taken by WCMI expert showed 467 blades per meter. In the 320 square meters of seagrasses in the area a total biomass of invertebrates was found to be 17 pounds. Using generally accepted conversion rates and invertebrate reproduction cycles to convert this biomass to fish, this weight of invertebrate biomass could be converted into between 2 and 10 pounds of fish annually. Removal of the seagrasses will remove feeding grounds and hiding areas for some types of aquatic animals and also take away the type of fish that inhabit such areas. On the other hand, the piling and other docking structures that will be installed will attract sessile organisms such as oysters, barnacles, etc. which currently attach themselves to rocks and mangrove roots in the vicinity. The biomass or weight of these organisms is likely to equal or exceed those to be lost by dredging away the seagrasses. The different types of fish will be attracted to the area where the shellfish and other attaching animals congregate than will be attracted to grassy bottoms, the change is not significant from a quality or quantity of fish point of view. The area to be dredged is an area that has partially recovered from its earlier destruction and there is no reason to believe a similar recovery will not recur after the dredging here proposed is completed. No evidence was presented that a collision between a boat and a manatee has ever occurred in the waters in the vicinity of the Isles of Capri. Any conclusion that such an incident is likely to occur because of increased boat traffic when the proposed marina is in operation would be sheer speculation. Furthermore, Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. Nor is Snook Bay one of those areas where a concentration of manatees is likely to occur.
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Protection enter a final order enforcing the prohibitions contained in both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve. RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Subordinate and unnecessary. 8.-9. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted in part and rejected in part, as reflected in the Findings of Fact. Accepted as representative of dead low tide. Subordinate and unnecessary. Accepted and incorporated. Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer. Accepted but subordinate and unnecessary. Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.) Accepted but subordinate and unnecessary. Accepted and incorporated. 20.-21. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.") 25.-27. Accepted and incorporated. Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.) Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary. 21.-24. Rejected as being conclusion of law. 25.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as conclusion of law as to who is "responsible." 35.-54. Accepted and incorporated to the extent not subordinate or unnecessary. 55. Rejected as not proven. Also, conclusion of law. COPIES FURNISHED: Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County Post Office Box 1533 St. Augustine, Florida 32085-1533 Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel Department of Environmental Protection Mail Station 35 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The central issue in this case is whether Sunrise is entitled to the permit for the construction of the proposed marina.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: On or about February 3, 1988, Sunrise submitted an application to the Department for permission to construct a 33 slip marina to be located at 2701 D. Sunrise Boulevard, Fort Lauderdale, Florida. The dock facilities to be built include four sections designed to accommodate yachts 70 feet or longer in length. The proposed marina would be located in a body of water known as Coral Bay. The bay opens onto the Intracoastal Waterway at the Sunrise Boulevard bridge. This marina is subject to the Department's permitting requirements under Chapter 403, Florida Statutes, and Chapter 17-12, Florida Administrative Code. The proposed marina does not require dredging. The only filling would be incidental to the placement of the pilings (supporting the dock system) and the rip rap (recommended by the Department to enhance fish habitation). Coral Bay is a Class III water which currently meets water quality standards for such classification. The water body east of the proposed marina is classified as an Outstanding Florida Water. On or about October 12, 1988, the Department issued an Intent to Issue the permit requested by Sunrise. The notice of the Intent to Issue was published on October 24, 1988. Thereafter, petitioners timely filed challenges to the proposed project. As specific conditions of the permit, the Department required the following provisions which are pertinent to the Kaye challenge: The required 300 cubic yards of natural limestone 1-3' diameter rip rap shall be placed at the toe of the bulkhead before the construction of the marginal pier. No sewage shall be discharged into the marina basin or other waters of the State. Sewage pump out facilities shall be provided, used and at all times maintained and operable. A permit is required from Broward County and shall be acquired to validate this permit. An effective means of turbidity control, such as, but not limited to, turbidity curtains shall be employed during all operations that may create turbidity so that it shall not exceed 29 Nephelometric Turbidity Units above natural background value. Turbidity control devices shall remain in place until all turbidity has subsided. * * * 8. Manatee Construction Conditions (copy enclosed) shall be implemented and in effect and Manatee Caution Signs and Educational Displays, per enclosed directive, shall be implemented. The proposed marina will occupy the southern half of Coral Bay. The Kaye property is north of the proposed site. Further north are a cooperative of townhome units and a yacht club. Access to the bay and to the Intracoastal Waterway is afforded these properties via a channel 75 feet in width which divides the bay waters. The proposed marina would not intrude into the access channel. There is an existing concrete seawall which extends vertically along the shoreline of the subject property. The parking and structures to be built incidental to the marina have been designed to require run off or drainage landward and not into Coral Bay. The water depth in the proposed marina is approximately 8 to 9 feet except along the shoreline where the depth is approximately 5 feet. It is not anticipated that the operation of the yachts will cause a significant disturbance of the marina basin floor. 10 The tidal flushing in Coral Bay is sufficient to remove incidental levels of pollutants which may be discharged. Therefore, the proposed marina will not have a significant impact on water quality. The incidental pollutants which may be expected are such items as paint leaching or minor fuel spills. Since the marina will not have fueling facilities and since sewage pump out facilities are mandated, it is not anticipated that these forms of waste will be significant to this project. The proposed marina will not have an adverse effect on the flow of water in the basin nor should it cause erosion or sedimentation. Further, it is not anticipated that the marina will adversely affect the water quality in the Outstanding Florida Water near the site. Although no water testing was performed at this site, the biota appears healthy. A number of fishes actively forage in the waters and algae can be observed down to a depth of 6 feet. Consequently, the water is clear enough to support growth to that depth. A number of birds feed and rest in the subject area. The docks are likely to displace the birds' direct access to feeding areas but it is anticipated that the rip rap will increase the surface areas available for organism development and thereby enhance the environment for fishes. While the docks will result in an estimated 16,700 square feet of shadowing of open water, given the benefits of the required rip rap, the overall impact should not be negative. Construction began on the Sunrise Boulevard bridge approximately three years ago. Manatees have not been observed at the proposed site since the work began. However, because it is known that manatees frequented this area before the construction and may again, manatee construction conditions and manatee signage provisions have been required by this permit. The construction provisions will require Sunrise to cease all construction upon the sighting of a manatee until such time as the animal vacates the area. Further, the signage provisions will require Sunrise to display warnings and to inform all marina users of the possibility of manatees in the area. Immediate notification to the appropriate authorities is required in the event a manatee is injured. It is anticipated that the proposed marina will displace transient use of Coral Bay. This loss when weighed against the benefits of having a docking facility available to yachts (with the amenities of power and fresh water) does not establish a negative recreational impact on the proposed site. The 75 foot channel is sufficient for safe passage to and from the Intracoastal Waterway and the properties owned by Sunrise and the Kayes. The proposed marina will not adversely affect recreational use of the properties. The project is intended to be of a permanent nature. The project will have no effect on significant historical and archaeological resources. There are no outstanding permits which, when reviewed in connection with this project, would establish that the water quality will be adversely affected by the proposed marina. It is not anticipated that the proposed marina, subject to the general and specific conditions of the permit, will adversely affect the public health, safety, or welfare. The negative affect to the property of others is minimal given the overall enhancement to the recreational and biological environments.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the permit for Sunrise Bay Harbour, Inc. DONE and RECOMMENDED this 11th day of May, 1989, 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 11th day of May, 1989. APPENDIX RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER KAYE: To the extent that paragraph 1 concludes the Department did not consider the Canrael permit in evaluating the Sunrise permit, such fact is accepted. However, under the facts of this case, the Department was not required to consider such permit since it was not contemplated that both projects could or would be built. The Canrael permit had expired prior to October 26, 1988, and Canrael formally abandoned its interest, if any, in the permit at the hearing in this cause. Paragraph 2 is rejected as argument, irrelevant or immaterial to the issues of this case. Paragraph 3 is rejected as contrary to the weight of the credible evidence. Paragraph 4 is accepted. Paragraph 5 is rejected as contrary to the weight of the credible evidence. The first two sentences of paragraph 6 are accepted but are irrelevant. The last sentence is rejected as contrary to the weight of the evidence or argument. Paragraph 7 is accepted. Paragraph 8 is rejected as argument or contrary to the weight of the evidence presented. Paragraph 9 is rejected as argument and is either contrary to the weight of the evidence presented or unsupported by evidence in this cause. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 23 are accepted. With the deletion of the phrase "both lawful and unlawful," paragraph 24 is accepted. Paragraphs 25 through 29 are accepted. Paragraph 30 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SUNRISE: Paragraph 1 is accepted. Paragraph 2 is accepted as stipulated by the parties at the outset of this case. Paragraph 3 is accepted. The parties did not oppose the tender of Mr. Nero in the categories listed. Paragraphs 4 through 7 are accepted. To the extent that paragraph 8 states this proposed project is within Class III waters, such paragraph is accepted. However, to the east of Coral Bay is a body listed as Outstanding Florida Water. Consequently any suggestion otherwise is rejected as contrary to the facts of this case. Paragraphs 9 through 22 are accepted. Paragraph 23 is accepted. Paragraph 24 is rejected as not supported by the evidence presented in this cause. Paragraph 25 is accepted but is unnecessary irrelevant or immaterial. Paragraph 26 is accepted. Paragraph 27 is rejected as irrelevant, immaterial, or unnecessary to the resolution of issues in this case. Paragraph 28 is accepted but is irrelevant immaterial, or unnecessary to the resolution of issues in this case. Paragraph 29 is rejected as contrary to the weigh of the evidence. Manatees have not been seen since the bridge construction began approximately three years ago. Exactly when, prior to that, a manatee was within Coral Bay is not disclosed by this record. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as irrelevant. Paragraphs 32 and 33 are rejected as irrelevant. COPIES FURNISHED: For Petitioner Canrael: Mary F. Smallwood Ruden, Barnett, McClosy, Smith, Schuster & Russell, P.A. 101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301 For Petitioners Kaye: Brion L. Blackwelder JACOBSON AND FINKEL 3363 Sheridan Street, Suite 204 Hollywood, Florida 33021 Jack and Harriet Kaye 1100-1120 Seminole Drive Fort Lauderdale, Florida 33304 For Sunrise Bay: William Robert Leonard Leonard & Morrison P.O. Box 11025 Fort Lauderdale, Florida 33339 For DER: Wayne L. Schiefelbein Assistant General Counsel Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On March 30, 1981, the State of Florida, Department of Environmental Regulation, received a request from William H. Griffith to allow him to place "rip-rap" adjacent to a retaining wall which fronts Griffith's property. Griffith is a resident at 259 Sabine Drive, Pensacola Beach, Florida. This residence address is in Escambia County, Florida. The details of the application for permit are as set forth in Respondent Griffith's Exhibit 3, admitted into evidence, which is a copy of the application. The application as originally constituted requested that Griffith be allowed to place "rip-rap" material along the front of his property adjacent to the retaining wall which wall was approximately 140 feet in length. The depth of the "rip-rap" material was to be 30 feet with an approximate height of the material being 3 feet. The "rip-rap" material was to be constituted of concrete test block cylinders which are 6 to 8 inches in diameter by 12 to 14 inches in length, together with other aggregate material constituted of irregularly shaped chunks of concrete. Those materials are depicted in the Petitioner's Exhibit 1A through H which are photographs taken at the site of the proposed project. Subsequent to the submission of the application for permit, a modification was made which reduced the depth of the "rip-rap" material from 39 feet to 10 feet 6 inches. This modification occurred sometime in May, 1981, and is depicted in the Respondent Griffith's Exhibit 3. The proposed project, in its modified form, would involve navigable waters of the State. Specifically, it would involve Class II waters, namely the intercoastal waterway which is fronted by the Respondent Griffith's property. A sketch of this location in Escambia County is depicted in the item entitled "vicinity map" which is part of Respondent Griffith's Exhibit 3. The purpose of the "rip-rap" as it is presently contemplated through the project would be to prohibit tidal erosion of the Respondent Griffith's property, in the area of his beach front, particularly as it is exacerbated by seasonal winds. A permit application appraisal was made by the Department and was concluded on July 27, 1981. A copy of that appraisal may be found as the Respondent Department's Exhibit 1, admitted into evidence. Through the process of the permit review and appraisal, the Department requested that the applicant remove four "rip-rap" groins running perpendicular to the retaining wall, which were 20 to 30 feet long. Those groins were not acceptable to the Department as devices to prohibit erosion. Respondent Griffith has removed the majority of the fill material and the present design contemplates the total removal of those groins. At the time of the permit review and at present the existing retaining wall is located 8 to 10 feet landward of the approximate mean high water shoreline. If constructed the 10 foot 6 inch depth "rip-rap" fill structure would extend approximately 2 feet waterward of the approximate mean high water shoreline. A description of the flora and fauna located at the project site, together with general description of the soil types may be found in Respondent Department's Exhibit 1. The impact of the project as described in the permit application appraisal, Respondent Department's Exhibit 1, indicates that the placement of "rip-rap" would stabilize the eroding shoreline adjacent to the applicant's property; provide moderate amounts of substrate to act as a habitat and shelter for intertidal organisms; would act as a limited inhibitor to littoral sand transport, particularly as related to Petitioner Gibson's property, in that there will be some deprivation of sand transport onto the Gibson property until the "rip-rap" stabilizes; however, this deprivation of sand transport of the Gibson property is not substantial. The impact on the Gibson property is further described in the appraisal statement as being insignificant. (It is also suggested that Gibson utilize "rip-rap" as opposed to the vertical timber retaining wall which is in place at his property and is subject to being undermined by tidal pressures.) These perceptions as set forth in the Department's permit application appraisal are factually correct. Having conducted the permit review and being of the opinion that the permit should be issued, the Department sent a letter of intent to issue the permit on July 29, 1981, and served Petitioner Gibson with a copy. The permit document was also forwarded to the applicant. The letter of intent and permit document may be found in Respondent Griffith's Exhibit 5, which was admitted into evidence. This exhibit is a copy of the aforementioned items. Subsequent to the notification of the intent to grant, Petitioner Gibson requested a Subsection 120.57(1), Florida Statutes, hearing, which Petition, in its final form, may be found as Respondent Griffith's Exhibit 2, admitted into evidence, which is a copy of the verified Petition of the Petitioner. The hearing was then noticed and conducted on November 10, 1981, pursuant to the hearing notice, a copy of which may be found as Respondent Griffith's Exhibit 1, admitted into evidence. The project as contemplated will not have a significant negative impact on the flora and fauna. To the extent that there is some destruction by the placement of the "rip-rap" material, this destruction is more than offset by the provision of habitat and shelter for intertidal organisms. The placement of the "rip-rap" will not have a negative impact on water quality in the waters of the State which are adjacent to the Respondent Griffith's property and in which the "rip-rap" will be implaced to the extent of approximately 2 feet waterward of the approximate mean high water shoreline. Should the "rip-rap" material not be placed, shoreline erosion will continue in the area of the applicant's property and that of the Petitioner. The placement of the "rip-rap" is not a hazard to navigation nor in conflict with the public interest. The applicant has received necessary approval from the Army Corps of Engineers for the installation of the "rip-rap" material as may be seen by the grant of a permit from the Corps, a copy of which is found as Respondent Griffith's Exhibit 4, admitted into evidence.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
