The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
The Issue The only issue to be resolved is whether a 440-square-foot dock to be constructed by the Town of Fort Myers Beach (Town) creates a navigational hazard and therefore cannot qualify for a regulatory exemption pursuant to section 403.813(1)(b), Florida Statutes (2018).
Findings Of Fact The Parties The Department is the state agency having jurisdiction over the construction and permitting of docks. The Department also acts as the staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) concerning the use of sovereign submerged lands owned by the Board of Trustees. The Town is a small municipal corporation located on a barrier island (Estero Island) just west-southwest of the City of Fort Myers in Lee County. Matanzas Pass, designated by the Department as a Class II Outstanding Florida Water, lies between Estero Island and the mainland. The Shanoskys own property at 177 Hercules Drive, Fort Myers Beach. The parcel lies on the north side of the proposed dock. Their home was constructed in 1952, and they are the second owners. An L-shaped dock extending from the shoreline into Matanzas Pass was built by the first owner in the 1970s and still remains in place. The dock is approximately the same length (49 feet) as the pier proposed by the Town. Michael Steck owns property on the south side of the proposed dock at 190 Hercules Drive, Fort Myers Beach. The parcel was purchased only for boating purposes, as there is no residence on the property. An L-shaped dock extending into Matanzas Pass was in place when he purchased the property in 2001. His dock extends slightly further from the shoreline into the water than the proposed new dock. Background Since at least 1944, or long before the Town was incorporated, a dock extended from the public right-of-way at the end of Hercules Drive into Matanzas Pass. By 1953, private docks were located on what are now Petitioners' properties, directly adjacent to the public dock. Due to age and weather-related factors, the public dock deteriorated over time and was completely removed by the Town in October 2015. The width of Matanzas Pass from shoreline to shoreline at that point is more than 750 feet, while the navigational channel is more than 300 feet wide. Over the years, the old Town dock changed configurations several times. In 2002, the dock was extended to 49 feet beyond the bulkhead of the shoreline and remained unchanged until its removal in 2015. After the dock was removed, a number of residents urged the Town to build a new dock that will be used for fishing and viewings. Boats will not be moored at the pier. Except for Petitioners, all residents in the area support that effort. Besides multiple neighborhood meetings, several public meetings were conducted by the Town Council concerning the construction of a new dock. On May 22, 2017, Mr. Baker, the former public works director, sent all area residents a letter, along with a preliminary drawing of the dock. Town Ex. 2. The letter advised residents that they should contact him if they had any questions or concerns. Mr. Steck resides in Illinois and only spends two or three weeks each year in Florida. He did not receive a copy of the letter. The Shanoskys' primary residence at that time was in New Jersey. Ms. Shanosky testified that they received a copy of the letter "almost in June, [or] the very end of May." On June 23, 2017, Ms. Shanosky emailed Mr. Baker and stated that they just received the Town's letter and they "DO NOT approve these plans that were outlined in your May 22, 2017 letter to us." Town Ex. 1. On May 24, 2017, the Town authorized Mr. Kincaid, its engineering consultant, to file an application with the Department. On June 17, 2017, Mr. Kincaid submitted to the Department a request for verification of an exemption to perform the following activity: To install a 440 square foot pier at North end of Hercules Avenue, Town of Fort Myers Beach, Florida 33931 in Matanzas Pass, Class II Outstanding Florida Waters, Unclassified for shellfish harvesting, Lee County. Based on the information provided in the application, and using the criteria in section 403.813(1)(b), on July 3, 2017, the Department's Fort Myers District Office issued a letter informing the Town that pursuant to section 403.813(1)(b) and Florida Administrative Code Rule 62-330.051(5)(b), the proposed activity qualifies for an exemption from the need to obtain a regulatory permit under Part IV of chapter 373, Florida Statutes. Dep't Ex. 1. Pertinent to this case was a determination by the Department that the proposed dock would not create a navigational hazard. The letter further informed the Town that while the proposed activity is located on sovereign submerged lands owned by the Board of Trustees and requires authorization to use those lands, the activity qualifies for an automatic consent by rule pursuant to rule 18-21.005(1)(b). That action is not in dispute. The Department's letter did not require the Town to publish notice of the verification or to provide separate written notice to the adjoining property owners. Consequently, there is no evidence that notice of the Department's action was published or given to Petitioners. They did not learn of the verification until February 15, 2018, when Ms. Shanosky performed a Google search and learned that an application had been filed with the Department and an exemption had been verified. She spoke by telephone that day with Ms. Mills, the Department's program permitting administrator in the Fort Myers office, who confirmed this action. On February 21, 2018, Ms. Shanosky emailed Ms. Mills and expressed her objections to the dock. These objections included not only navigational concerns, but also a fear that, like the old dock, the new dock would continue to be used by "nighttime partiers with their litter and noise."1/ By email dated February 21, 2018, Ms. Mills provided Ms. Shanosky with instructions on how to request a hearing. On February 23, 2018, Ms. Shanosky informed Mr. Steck of the Department's action. Collectively, they filed their Petition on March 8, 2018. The Petition alleges the dock does not qualify for an exemption under section 403.813(1)(b) because: (a) it will create a navigational hazard by impeding Petitioners' ability to access their own docks, and (b) it will create a navigational hazard in the open waters that are contiguous to their docks. There was no evidence regarding the open waters allegation, and, therefore, only the first allegation remains in issue. At hearing, Petitioners testified that if the Town would agree to shorten the length of the dock by an undisclosed number of feet, it would resolve the dispute. The Project The public right-of-way at the end of Hercules Drive is approximately 47 feet wide. Town Ex. 10. Because the Town has less than 65 linear feet of shoreline on its right-of-way, the requirement that the new dock be at least 25 feet from the riparian lines of adjoining property owners does not apply. See Fla. Admin. Code R. 62-330.051(5)(b)4. A seawall runs along the shoreline in front of Petitioners' properties, from which their docks extend into the water. Until recently, there was no seawall in front of the Town right-of-way. As a part of a separate stormwater project, the Town has backfilled the area between Hercules Drive and where the adjacent seawall ends and constructed a new seawall to fill in the gap. The Town has attempted to center the new dock in the middle of its property. A 30-foot concrete sidewalk will be built from Hercules Drive to the new seawall. The dock will extend approximately 49 feet from the seawall into Matanzas Pass, which corresponds to the length of the old dock. The new dock is comparable in size and consistent in design with other private docks in the area. It does not extend forward of existing structures owned by Petitioners into the Matanzas Pass channel. The first 25 feet of the dock will be six feet wide, while the remaining 24 feet will have a 12-foot, 4-inch wide platform, with handrails. Although the new dock substantially replicates the old dock, the square footage of the terminal platform has been reduced. The distance between the new pier and the closest part of the Shanosky dock is 53 feet, while the closest part of the Steck dock is 52 feet. Except for being a foot or two closer to the Shanosky side, this distance corresponds to the separation which existed before the old dock was removed. The average speed of the current in the area where the dock will be constructed is 1.45 miles per hour. Except in stormy weather or when waters are extremely rough, the current will not create a navigational concern for Petitioners when accessing their docks. Petitioners' Concerns The Shanoskys currently moor a twin-engine, 24-foot jet boat at their dock, and their children use two personal watercrafts. The personal watercrafts will not be impacted in any manner by the new dock. Mr. Shanosky, a self-described recreational boater, is "entertaining the thought" of purchasing even a larger boat, a 48-foot trawler, which would require him to remove one lift on his dock. Mr. Shanosky testified that before the old dock was removed, mooring his boat was "extremely difficult, challenging, and hazardous," and the new dock will make access "dangerous." But at the same time he admitted that during the 13 years the old dock with the same dimensions was in place, he experienced only one incident, and this allision was caused by a "hard current," resulting in the boat striking his own dock. There is no evidence that during that period, he voiced any concerns to the Town regarding a navigational hazard. According to Ms. Shanosky, if the new dock is built, it will be "much harder" to dock their boat, especially if people are fishing on the pier. Mr. Steck describes himself as a "recreational boater and racer but not a professional." He currently owns a 44-foot Trimaran, which has an eight-foot bowsprit and is approximately 30 feet wide. Pet’r Ex. 6. Although the boat has been moored in Chicago for the last few years, he intends to ship it to Florida at some time in the future. Mr. Steck's boat has a small engine (27 horsepower) and is very light. He steers with a rudder, which requires him to have speed when docking his vessel. Without speed, he cannot steer. If the new dock is constructed, he testified that it will be a "nerve racking" experience to dock his boat on the inside of his pier because of the narrow space between the two docks. However, when he purchased a 44-foot vessel years ago, he did so with the knowledge of the old dock, and that he had no more than 52 feet or so of space between his dock and the Town's dock. Mr. Steck has docked his boat on both the inside and outside of his dock. Even when the old dock was in place, he never experienced an allision. Mr. Steck agrees that if he docks on the outside or seaward part of the pier, there will be no navigational issues. According to Petitioners' expert, there is no "margin of safety" with the new dock, and if the mariner's calculations are slightly off, or there is a sudden gust of wind, it would "very likely" cause a collision with the mariner's dock or the new Town pier. However, the record shows that between 2002 and 2015, with the same margin of safety, except for one incident during a sudden "hard current," neither Mr. Shanosky nor Mr. Steck experienced an allision. The Town's expert established that the location of the new dock meets industry standards for boat-maneuvering requirements between a structure and the opening of a slip perpendicular to the structure. The standards call for a minimum space (or width) of 1.5 times the vessel's length that would be moored to the slip. This space between the structure and the slip is known as the "fairway." The fairway for the Shanosky's 24-foot boat meets or exceeds industry standards. If moored on the inside of his dock, Mr. Steck's 44-foot vessel with an eight-foot bowsprit will encroach on the Town's riparian right-of-way.2/ To avoid encroachment, he must dock his boat on the outside of the pier, which extends slightly further into the water than the new Town dock. When docked in this manner, the fairway meets industry standards and will not cause any interference. From 2002 until October 2015, the old dock was the same length and size as the proposed dock. Therefore, Petitioners will face the same navigational concerns, no more or no less, than they faced during that 13-year period. While it may create an inconvenience for Petitioners, or cause them to be more cautious during ingress and egress from their docks, the new dock will not create a navigational hazard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order reaffirming that the Town is entitled to (1) an exemption from permitting requirements to construct a new dock, and (2) automatic consent by rule to use sovereign submerged lands. DONE AND ENTERED this 20th day of November, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2018.
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately 35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters. The applicant has not supplied the Department with any evidence of local approval of the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED. Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Howard Meyers Jolly Roger Trailer Park R.D. Number 1, Box 525 Marathon, Florida 33050 H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, just north of the Venetian Causeway. Respondent has constructed the marina on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund, acting through the Department of Natural Resources. The submerged lands which are the subject of the lease in question in this proceeding are sovereignty lands lying within the Biscayne Bay Aquatic Preserve as defined in Section 258.165(2)(a) , Florida Statutes, and in Chapter l6Q-18, Florida Administrative Code. Chapter l6Q-18 became effective March 20, 1980. In 1976 and 1977 Respondent received permits from the State of Florida, Department of Environmental Regulation, and the Army Cords of Engineers for two "J" shaped main docks, one 700 feet long and the other 500 feet long, roughly forming a half circle extending about 450 feet from the shore. The permits also authorized the construction of two 280-foot long "T" shaped docks within the semicircle, one on each side of the central dock and fueling facility which is the subject matter of this proceeding. on October 27, 1977, DER issued Permit No. l3-30-0740-6E to Respondent, authorizing the construction of the central dock and fueling facility. On August 18, 1977, Respondent applied to the Board of Trustees and DNR for the lease in controversy. The letter and enclosures indicated the area to be leased would encompass 38,268 square feet of bay bottom. The applicant's letter makes reference to a "docking and fueling facility," while the legal description submitted with the application is captioned "Omni Marina Phase II and Fueling Dock." The plan-view drawings and cross-sectional views of the pier which Respondent filed with DER and which were in turn furnished to DNR show a platform at the end of the central pier labeled with the words "FUEL," but do not show any building associated with the pier. A cross-sectional view of the platform alone was neither provided by Respondent nor requested by either DER or DNR. Notwithstanding this fact, however, during the course of DNR review of the lease application, Respondent advised DNR officials of its intention to place some structure on the platform at the terminus of the central pier to serve as a "fueling station." DNR personnel in charge of the application evaluation in fact conducted in-house discussions concerning the agency's interpretation of what would constitute a "fueling facility." These DNR officials in fact knew that Respondent intended to erect a structure on the platform of the central pier to serve as a fueling facility. Despite this knowledge, DNR officials did not request additional information relating specifically to the character of any structure which Respondent intended to erect on the platform at the end of the central pier for reasons hereinafter set forth. The Board of Trustees of the Internal Improvement Trust Fund met on March 23, 1978, and approved Respondent's lease application The minutes of that meeting state that: This facility is consistent with existing usage and does not unreasonably interfere with lawful and traditional public use of-the Preserve and is in compliance with Section 258.165, Florida Statutes. As a result of the Board approval, a lease was issued and duly executed allowing Respondent ". . . to operate exclusively a fueling facility upon sovereignty lands. . . ." Respondent was granted a lease term of five years commencing March 21, 1978. At the time the lease in question was approved, neither the lease itself nor any rule, statute, or agency practice defined the term "fueling facility." There were, in fact, no rules adopted by the Board of Trustees or DNR in existence on March 23, 1978, governing the leasing of sovereignty submerged lands. Instead, DNR and the Board of Trustees employed former Rule 18-2.22, Florida Administrative Code, as a policy guide in processing submerged land lease applications. Under the Florida Administrative Procedure Act, the provisions of Chapter 18-2, Florida Administrative Code, had become null and void as of October 1, 1975, by virtue of the failure of the Board of Trustees and DNR to readopt those rules in accordance with Chapter 120, Florida Statutes. Even Chapter 18-2, Florida Administrative Code, however, failed to define "fueling facility," "marina," or "commercial docking facilities," all of which terms appear in the disputed lease issued to Respondent. Former Rule 18-2.164, Florida Administrative Code, contains licensing requirements for marinas, including furnishing construction drawings of proposed structures and complying with the requirements of that rule in the event any structural modifications occur. The record in this cause establishes, however, that DNR, at the time the lease in controversy was issued, did not uniformly apply the "policy guide" contained in former Rule 18-2.164, Florida Administrative Code. In fact, it appears that prior to the promulgation of the Biscayne Bay Aquatic Preserve rule, Chapter 16Q-18, Florida Administrative Code, on March 20, 1980, DNR's policy in the leasing of sovereignty submerged lands was to concern itself only with the amount of state land that a proposed use would require. In this connection DNR and the Board of Trustees were not concerned with the design of structures to be placed on leased sovereignty submerged lands, but were concerned only with maintaining the (integrity of lease boundaries. After December 20, 1978, DNR expressed this policy as a rule, exempting the modification of existing structures from lease modification requirements so long as the structural modification did not require ". . . the use of any additional sovereignty submerged lands." Rule 16Q-17.14(1)(j) , Florida Administrative Code. At the time of the issuance of the lease here in question, Respondent did not know the exact nature, size, or height of any structure that it might wish ultimately to build on the central platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings submitted to DER, and in turn forwarded to DNR by DER. On January 11, 1979, approximately fourteen months after issuance of the DER permit and less than one year after issuance of the lease here in question, Respondent furnished a copy of the floor plan of the proposed building on the central pier to DER. This floor plan indicated areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan was a storage area for electric carts to be used in servicing vessels utilizing the marina facilities. On April 20, 1979, the City of Miami issued a valid building permit for construction of the marina fueling station. Respondent notified DER and DNR in July of 1979 that it intended to begin construction of the marina shortly thereafter. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 25, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Prior to construction of the fueling platform and building, but after completion of the central lease pier, DNR made an annual inspection of the marina on February 16, 1981. During this inspection, the central lease dock was checked and found to be in compliance with the Biscayne Bay Aquatic Preserve Act. In December of 1981, DNR learned that Respondent had constructed a building on the platform at the end of the central pier through receipt of a copy of a DER warning notice issued to Respondent. DNR then sent a letter to Respondent on January 29, 1982, advising Respondent to revise its plans and locate the building on the uplands since the building as constructed might be in violation of Section 258.165, Florida Statutes, commonly referred to as the Biscayne Bay Aquatic Preserve Act. Correspondence then ensued between DNR and Respondent culminating in a March 8, 1982, letter from DNR advising Respondent of DNR's intent to seek cancellation of the lease for the central pier at an April 20, 1982, meeting of the Board of Trustees. The following day, on March 9, 1982, an inspection was made of the central lease facility. The building constructed on the platform at the end of the central pier has a floor area of approximately 3,800 square feet, and a roof area of approximately 5,292 square feet. The building was constructed at a cost of approximately $500,000. The net area of the platform at the end of the central pier contains about 9,640 square feet. The height of the structure is approximately 18 to 20 feet, and it is situated over the water approximately 400 feet east of the bulkhead. The interior of the building has been divided into six rooms, and no fuel pumps were found on the leased area on March 9, 1982. Construction of the building was halted before it could be completed or put into use. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant' room with cash register and equipment for fuel pumps. In addition, the structure contains bathroom facilities for boat owners and passengers and employees, and shower facilities for marina employees. All of these uses are customarily associated with the operation of marina facilities. Construction of the fueling station at the end of the central pier did not require the use of any sovereignty submerged lands in addition to those encompassed within the existing lease. Further, construction of the building did not require additional dredging or filling nor did it result in any significant adverse environmental impact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund dismissing this cause, and denying the relief requested against Respondent. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005.
Findings Of Fact The Petitioners, Dale K. Niemann and Janet R. Niemann, own property on Devon Drive, in Clearwater, Florida, which is approximately two houses down the street from the Respondent, John Blakely. On or about May 25, 1990, Mr. Blakely requested two variances from the Development Code Adjustment Board of the City of Clearwater. It was his intention to seek the variances in order to extend his present dock approximately twenty-five feet (to a length of eighty-nine feet) and to allow the dock to be positioned 8 feet from an extended side property line. The Petitioners oppose the requests and argue that the extension is not necessary to make reasonable use of Respondent's dock. Further, they claim that, if allowed, the dock extension, together with the boat lift the Respondent proposes, will interfere with their view of the water. The proposed dock extension will not obstruct navigational activities. The natural shoaling process has resulted in the accretion of sand and silt along the Respondent's property. As a result, during low tides it is difficult to utilize the existing dock and would be impossible to use it for the proposed boat lift. Also, there is a grass flat landward of the proposed boat lift site upon which the Respondent's construction will not infringe. The construction of the lift at the terminus of the existing dock might disrupt that grass bed. The Respondent will not financially gain from the granting of the requested variances. The approval of the variances will not impair an adequate supply of light or ventilation to the adjacent properties, nor substantially diminish or impair the value of the surrounding property. The approval of the variances will not adversely affect the public health, safety, order, convenience or general welfare of the community. The approval of the variances will not violate the general spirit and intent of the Development Code. While the approval of the variances may alter the Petitioners' view from the side window of their residence, such alteration should not materially detract or injure their property or the property or improvements of others in the neighborhood. Other structures which Respondent could construct without the approval of variances could be more detrimental to the neighborhood.
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, 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 28th day of July, 1993.
