Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issue in this case is whether Rule 18-20.004(5)(a)1, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact 1. Rule 18-20.004(5)(a)1 provides: All docking facilities, whether for private residential single-family docks, private residential multi-slip docks, or commercial, industrial, or other revenue generating/income-related docks or public docks or piers, shall be subject to the following standards and criteria: no dock shall extend waterward of the mean or ordinary high water line more than 500 feet or 20 percent of the width of the waterbody at that particular location whichever is less; * * * Pursuant to stipulation, Petitioner has standing, a dock, and upland access to his property. The parties also stipulated that Petitioner's dock is limited by the 500-foot criterion, as the proposed dock extension would not exceed 20 percent of the width of the waterbody. Petitioner's upland property consists of a single family residence and is located adjacent to sovereign submerged lands located in the Gasparilla Island/Charlotte Harbor Aquatic Preserve. He has lawfully constructed a dock extending about 500 feet from the mean high water mark and into the waters of Charlotte Harbor. The consent of use granted Petitioner acknowledges the relative shallowness of the water adjacent to his property and correspondingly limits the draft of vessels to be moored to the dock. At mean low tide, the depth of the water at the end of Petitioner's dock is about two feet. Petitioner requested authorization to extend his dock waterward another 100 feet. On December 15, 1993, Respondents denied the request, in reliance upon the challenged rule and Section 258.42(3)(e)1, which allows the erection in an aquatic preserve of private residential docks for "reasonable ingress and egress of riparian owners." In a separate administrative proceeding, DOAH Case No. 94-2140, Petitioner is contesting the denial of his request to extend the dock. No single family docks in aquatic preserves extend over 500 feet into the water. In Charlotte Harbor, the average length of a single-family residential dock is 200 feet. Nearby Petitioner's dock is a 600-foot long public fishing pier, which was constructed before the subject 500-foot rule was promulgated. From mean high water waterward, the first habitat surrounding Petitioner's dock is an intertidal sand flat that extends about 100-150 waterward from shore. The next habitat is mostly unvegetated submerged bottom with patches of submerged aquatic vegetation that extends from the end of the intertidal sand flat to about 350-400 feet from shore. The vegetation of the latter habitat is mostly Cuban shoal grass, which occurs in no more than four patches of about 50 square feet, in an area measuring 25 feet in both directions from the dock. Last, extending from 350-400 feet waterward to the end of the dock, is a largely unvegetated area with sporadic pieces of attached algae. Unvegetated bottoms play no role in the propagation of fish or wildlife. The biological or scientific value of unvegetated bottoms is unaffected by a dock, although there is some evidence that toxic substances may leach from the construction materials and adversely impact nearby vegetation. However, the dredging caused by boat propellers scouring any form of submerged bottom suspends sediment that can be carried to areas of vegetated bottom, where the increase in turbidity may reduce the penetration of sunlight and thereby harm the aquatic vegetation. In the vicinity of Petitioner's dock, though, there is no evidence of significant prop dredging from recreational boating. The absence of submerged vegetation is more likely a feature of the high-energy shoreline where wave energy disrupts sediments and provides unsuitable habitat. In promulgating the predecessor to Rule 18- 20.004(5)(a)1, the Board of Trustees of the Internal Improvement Trust Fund attempted to balance interests that sometimes are competing, such as environmental, aesthetic, recreational, and private commercial. There was some concern that previously authorized docks in sovereign submerged lands had infringed upon the riparian access of adjacent upland owners. The 500-foot limitation was not in the original rule, which was promulgated in 1981, but was added by an amendment in 1985. The Board of Trustees of the Internal Improvement Trust Fund tried to set thresholds that would not result in the denial of more than a negligible number of dock applications, based on historic dock application data and predominant vessel lengths of under 27 feet. However, the record does not explain how the Board of Trustees of the Internal Improvement Trust Fund analyzed the above-described data so as to arrive at the 500-foot limitation now under challenge. Without providing more detail concerning the data and analysis, it is possible that a limitation of 100 feet or 900 feet would have satisfied the considerations stated in the preceding paragraph. Shallow water predominates in the aquatic preserves, and Board of Trustees of the Internal Improvement Trust Fund realized that a dock extending no more than 500 feet might not reach water depths that are readily navigable. The Board of Trustees of the Internal Improvement Trust Fund could not rationally adopt a rule to ensure minimum water depths for all docks, and chose the 500-foot limitation evidently to provide an easy-to-administer standard.
The Issue The issues are whether Keith Rockman's construction of a dock and other structures on Choctawhatchee Bay in Fort Walton Beach, Florida, is exempt from Wetland Resource Permit requirements, and whether authorization to use sovereign submerged lands for the project should be given.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On December 19, 2005, Mr. Rockman, who lives at 325 Brooks Street, Southeast, Fort Walton Beach, Florida, filed an application with the Department's Northwest District Office in Pensacola requesting authorization to construct a platform seven feet wide by eight feet long; an access pier three feet long; another access pier four feet wide by forty-five feet long; four mooring pilings outside the slip; and ten mooring pilings inside the proposed slip, totaling 371 square feet. The application indicated that the proposed construction activities would take place in the Choctawhatchee Bay, a Class III water of the State, on which Mr. Rockman's property fronts. (This waterbody is more commonly known as the Santa Rosa Sound or the Intracoastal Waterway.) The property already had an existing 25-foot dock when Mr. Rockman purchased the property sometime in 2005; however, because Mr. Rockman wishes to dock a larger boat than the prior owner, he has requested authorization to build the structures in issue here. Based upon the information supplied by the applicant, Diana Athnos, an Environmental Manager with the Northwest District Office, advised Mr. Rockman by letter dated January 31, 2006, that the Department had "determined that [his] project is exempted from [the Department's] Wetland Resource Permit requirements by Rule 62-312.050(1)(d), Florida Administrative Code." The letter also stated that the "letter is your authorization to use sovereign submerged land (if applicable) for the construction of your project, as required by Chapter 253.77, Florida Statutes and Chapter 18-21, F.A.C." After Department approval was obtained, Mr. Rockman completed construction of the project. Mr. Rockman elected not to publish notice of the Department's decision or provide notice by certified mail to specific individuals. Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. Petitioner, who lives next door to Mr. Rockman, learned about the Department's decision in a telephone call with the Northwest District Office on March 8, 2006. The papers filed in this case indicate that Petitioner and other neighbors had actually observed construction activities on Mr. Rockman's property in November 2005 and had filed complaints with the Department regarding these unauthorized activities. These complaints evidently led to the filing of an application by Mr. Rockman. On March 17, 2006, Petitioner, who resides at 328 Brooks Street, Southeast, Fort Walton Beach, and has 50 feet of frontage on the water with a dock extending into those waters, filed a letter with the Department, which was treated as a Petition challenging the Department's earlier decision. This Petition was later dismissed by the Department on the ground it raised claims concerning Petitioner's riparian rights, a matter beyond the Department's jurisdiction. Petitioner then filed an Amended Petition on July 11, 2006, in which he again contended that his riparian rights would be severely restricted by the proposed activities, and that the dock would create a navigational hazard. Although Florida Administrative Code Rule 62-312.050(1)(d)3. requires that a project not "create a navigational hazard" in order to be exempt from permitting requirements, Petitioner opted to base his claims on two provisions in Florida Administrative Code Rule 18-21.004(7), which contains the general conditions for authorizations to use sovereign submerged lands. The riparian rights issue was again excluded from consideration at a status conference held on January 5, 2007. The parties advise that this issue is now being pursued in a separate action in circuit court. Through the introduction into evidence of its complete permit file as Department Composite Exhibit 1, the Department established that the proposed activities are exempt from permitting requirements under Florida Administrative Code Rule 62-312.050(1)(d). More specifically, the activity will take place in waters which are not located in Outstanding Florida Waters; the structures are less than 1,000 square feet of surface area over the landward extent of waters of the State; they will be used for recreational purposes; they will be constructed on pilings; they will not substantially impede the flow of water or create a navigational hazard; and the structure is the sole dock constructed pursuant to the exemption as measured along the shoreline for a minimum distance of 65 feet. The dock and associated structures and pilings will be constructed over sovereign submerged lands owned by the State of Florida. Under Florida Administrative Code Rule 18-21.005(1), which specifies the forms of authorization for consent to use sovereign submerged lands, "no application or written authorization is required for an activity that is exempt from the requirements of obtaining a permit," so long as certain conditions are met, including those found in Florida Administrative Code Rules 18-21.004(7). See Fla. Admin. Code R. 18-21.005(1)(b). The only relevant condition raised in the Amended Petition is whether or not the "[s]tructures or activities shall . . . create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). In construing this rule, and the similar requirement in Florida Administrative Code Rule 62- 312.050(1)(d)3., the Department considers whether the structures will create a navigational hazard for boaters on the Intracoastal Waterway, as well as the owners of property who reside on either side of Mr. Rockman. In his Amended Petition, Mr. Woolshlager contended that the proposed structures or activities will create a navigational hazard when he accesses the dock in front of his property. As clarified at hearing, Petitioner does not dispute that he (or any "good boat driver") has adequate ingress and egress for his smaller boat, even with the larger dock on Mr. Rockman's property. Indeed, the record shows that he has been observed leaving his dock and accessing the Intracoastal Waterway. However, Petitioner indicated that if he should die, his wife intends to sell the property. If the new purchaser desires to dock a larger boat, he fears that there will not be sufficient room to do so, and the value of his property will be diminished. Through testimony from a licensed boat captain, it was established that Mr. Rockman's dock does not create a navigational hazard for boaters in the Intracoastal Waterway whose boat channel lies at least 600 feet or so from the shoreline, or for property owners on either side of the applicant's property. Although Petitioner cannot dock a larger boat than he now has (a 21-foot boat), this is because he needs to dredge out the area where his existing dock is built and reconfigure its shape. (Mr. Woolshlager agreed that his dock actually encroaches a few feet onto Mr. Rockman's property; however, Mr. Woolshlager advises that the prior owner (who sold the property to Mr. Rockman) agreed to this encroachment when he purchased the property.) Therefore, all criteria have been satisfied.
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 granting Mr. Rockman's application for an exemption from permitting requirements and authorization to use state-owned submerged lands. DONE AND ENTERED this 7th day of May, 2007, 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 7th day of May, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John N. C. Ledbetter, Esquire 4641 Gulfstarr Drive Suite 102 Destin, Florida 32541-5324 Nona R. Schaffner, Esquire Amanda G. Bush, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael William Mead, Esquire John S. Mead, Esquire Michael Wm Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549-1329 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues to be determined in this case are whether Respondent Thomas Rosati is entitled to the Noticed General Permit and the Letter of Consent to use sovereignty submerged Lands issued by the Department of Environmental Protection ("Department"), which authorize the replacement of an existing private dock with a new private dock in the St. Lucie River in Martin County, Florida.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has responsibility to process and act on applications for authorization to use sovereignty submerged lands through a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees"). Rosati owns real property at 2391 Southwest Riverside Drive, Palm City, Florida. He is the applicant for the authorizations at issue in this case. Rosati does not currently own a boat, but he wants to obtain a boat that is large enough to use in the Atlantic Ocean. Petitioner Bryan Fleming owns real property that borders Danforth Creek. He also owns two nearby lots which entitle him to undivided interests in a community dock on Danforth Creek. Fleming owns several boats, including a 23-foot Penn Yan motorboat which he moored at docks on Danforth Creek. Petitioner Diane Haskett owns property that borders Danforth Creek. She has been an avid boater most of her life, but currently only co-owns, with Fleming, a 33-foot sailboat which they do not keep on Danforth Creek. She is a frequent passenger on Fleming's Penn Yan. Notice of Agency Action Rosati arranged for publication of a "Notice of General Permit" in the October 30, 2012, edition of The Stuart News. The notice was in the exact form suggested by the Department in its September 19, 2012, letter to Rosati. The notice reads in pertinent part: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF GENERAL PERMIT The Department of Environmental Protection gives notice that the project to remove an existing dock, and relocate and construct a new dock with an access walkway measuring 4 ft. by 392 ft. and ending in an 8 ft. by 20 ft. terminal platform, including two associated 12 ft. by 12 ft. boatlifts (total 1,728 sq. ft. structure, total 2016 sq. ft. preempted area), has been determined to qualify for a noticed general permit. This is the form of publication regularly used by the Department to notify the general public that the Department has determined a proposed project qualifies for a Noticed General Permit and a Letter of Consent. The exact location of the Rosati property was also included in the newspaper notice. Petitioners did not see the newspaper publication. Fleming first became aware of the Rosati dock when he saw it being constructed on January 13, 2013. He went to the Department's offices and inquired about the dock. Petitioners filed their petition for hearing on January 23, 2013, 10 days after receiving actual notice of the Department's agency action on the Rosati dock. Background Facts The east side of Rosati's property borders the St. Lucie River, which is designated a Class III water. The submerged lands in the area of the Rosati property are sovereign submerged lands of the State of Florida. The river bottom in the area is sandy. There are no corals, marine grass beds, or other significant aquatic resources. The south side of Rosati's property borders Danforth Creek. Danforth Creek is a navigable waterbody with normal depths of three feet or more. Rosati's shoreline along the Creek is approximately 275 linear feet in length and his river shoreline is approximately 125 feet. Rosati has a dock on Danforth Creek. It is in a basin that was created by excavating the private upland. The bottom of the basin is not state-owned sovereign submerged lands. Danforth Creek flows into the St. Lucie River near the southeast corner of the Rosati property. At its confluence with the St. Lucie River, there is a shoal or sandbar that most likely formed by the deposition of sediment carried out of the Creek. Rosati had a small (32 feet long) dock on his shoreline on the St. Lucie River. The Noticed General Permit and Letter of Consent allow Rosati to remove this old dock, which he has already done. The shoal at the confluence of the Creek and River restricts navigation in and out of Danforth Creek. Navigation in and out of Danforth Creek is usually impossible during low tides, except in a canoe, kayak, or other vessel requiring only a few inches of water. The most reliable route between the Creek and the River is a narrow channel only 2 to 3 feet deep at higher tides. This channel, which runs close to Rosati's eastern shoreline, shall be referred to hereafter as the "deeper channel." For many years, Fleming regularly used the deeper channel to take his 23-foot Penn Yan motorboat from Danforth Creek into the St. Lucie River and back again. The Penn Yan has a draft of about 18 inches. Using the deeper channel, Fleming could navigate in and out of Danforth Creek every day on the high tides. An unknown boater stuck a white PVC pipe into the river bottom at the side of the deeper channel to indicate its location. The New Dock Rosati's new dock was substantially completed at the time of the final hearing in June 2013. The new dock is four feet wide, 392 feet long, and terminates at a water depth of minus four feet mean low water. The other docks in the area are much shorter. The St. Lucie River in this area is more than 2,000 feet wide. Therefore, the dock extends into the River less than 20 percent of the width of the River. The total dock square footage of Rosati's dock on Danforth Creek and his new dock does not exceed 2,000 square feet. The dock, terminal platform, and boat lifts "preempt" 2,016 square feet of sovereign submerged lands, meaning that the dock excludes public use of this area of river bottom. Rosati's new dock crosses the deeper channel. It would cross the deeper channel even if it were half as long. The Letter of Consent authorizes Rosati to preempt from public use that portion of the deeper channel that lies beneath the new dock. Now, the only route that can be used by boaters wanting to navigate in and out of Danforth Creek is a narrow channel south of Rosati's new dock, between the dock and a spit of land about 15 feet away. This route can become dry at low tide and is only about a foot deep at high tides. This south route was used by Department staff during high tide using a boat drawing 8 to 12 inches of water. At low tide, they were unable to use this route to get from the St. Lucie River into Danforth Creek, but were able to use the deeper channel that now runs beneath the Rosati dock. Fleming would not be able to take his Penn Yan through the route on the south side of the Rosati dock except in rare high water conditions, such as may occur during or after hurricanes or heavy storms. No member of the general public who formerly used the deeper channel in a vessel drawing more than a foot of water would be able to use the south route except in rare high water conditions. In addition to the shallow character of the south route, it is in a narrow space between the Rosati dock and the sand spit. This route is only reasonably navigable by canoes, kayaks, and similar small, shallow-draft vessels. The Department contends that the general public has not been affected by the Rosati dock. However, all persons wishing to navigate in and out of Danforth Creek, including Fleming, other riparian landowners on Danforth Creek, and other members of the boating public are prevented from doing so in vessels which, just prior to construction of the Rosati dock, they could have used to navigate in and out of the Creek. Respondents further assert that the shoal may get worse and the deeper channel may become more shallow. This was mere speculation, with no timeframe offered. Furthermore, it was not shown that the deeper channel would not remain the best means of navigating in and out of Danforth Creek. Rosati's consultant did not make a site visit before submitting the forms for the Noticed General Permit and no Department employee made a site visit before the Department issued its letter of September 19, 2012. Included in the materials submitted by Rosati's consultant to the Department for the Noticed General Permit is an aerial photograph with a white arrow superimposed on the south side of the proposed Rosati dock to indicate a channel or water route from Danforth Creek into the St. Lucie River. The current or historical elevation of the route indicated by the white arrow was not established in the record. It is now overgrown with upland grass and is not an alternative water route for boaters wanting to get in and out of Danforth Creek. The information submitted to the Department by Rosati's consultant did not inform the Department that the best (deepest) route in and out of Danforth Creek would be blocked by the Rosati dock. The information implied that the proposed Rosati dock would not impair navigation in and out of Danforth Creek. Although not shown to be intentional, the information was misleading because it failed to inform the Department of the true site conditions and the impacts on navigation that would be caused by the proposed dock.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order determining that Thomas Rosati qualifies for the Noticed General Permit, and denying the Letter of Consent to use sovereignty submerged lands. DONE AND ENTERED this 31st day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2013. COPIES FURNISHED: Patricia E. Comer, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathan E. Nason, Esquire Gregory Hyden, Esquire Nason, Yeager, Gerson, White and Lioce, P.A. Suite 1200 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock and Heims, P.A. Post Office Box 1197 Stuart, Florida 34995-1197 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
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 Issues presented here concerned the entitlement of Respondent, Russell D. Horn, Sr., to be granted an environmental permit by Respondent, Department of Environmental Regulation, to build a boat stall on an existing dock in Putnam County, Florida. The boat stall's dimensions are ten feet wide by twenty feet deep and the construction would be on the St. Johns River.
Findings Of Fact On July 13, 1981, Russell D. Horn, Sr., who has a residence in Putnam County, Florida, bade application to the State of Florida, Department of Environmental Regulation, for the necessary permits to construct a boat stall ten feet wide by twenty feet deep at the site of an existing dock. A copy of the application may be found as Respondent Horn's Exhibit No. 2 admitted into evidence. The dock where Horn applied to build the boat slip is found in the St. Johns River, a navigable water body and waters of the State of Florida in Putnam County, Florida. The application form which was executed by Horn required him to indicate the name of adjacent property owners to the property at which the dock site was located, both upland and adjacent to the uplands. See Rule 17- 4.28(11)(c), Florida Administrative Code. To accomplish this task, the applicant utilized a sketch which he had been provided when he purchased his homesite in the area and indicated to the Department that the adjoining landowners were Milton Kilis and Robert Michal. In fact, Robert Michal was not an adjacent landowner. The adjacent landowner, Milton G. Kilis, wrote to advise the Department that he had no objection to the construction of the boat slip. This correspondence was dated September 11, 1981. A copy of that correspondence may be found as Respondent Department's Exhibit No. 3 admitted into evidence. After reviewing the initial application, additional information was requested by a document entitled "Completeness Summary" which was addressed from the Department to the Applicant Horn. A copy of this "Completeness Summary" requesting additional information may be found as Department's Exhibit No. 1 admitted into evidence. Through this summary, Horn was requested to provide written authorization from the dock owners. It was also requested that Respondent provide an affidavit of ownership of the upland property adjacent to the dock site. Horn received permission to construct from Frank Scussell and William A. Reaves, persons he understood to be the dock owners. See Respondent Horn's Exhibit No. 3 admitted into evidence. Horn misunderstood the question related to ownership of upland property and provided a mortgage deed with its attendant description of his home site property in Putnam County, which is at a different location from that of the upland property adjacent to the dock. A copy of that deed and other matters may be found as Respondent Horn's Exhibit No. 4 admitted into evidence. Department of Environmental Regulation reviewing authorities wrote on the "Completeness Summary" form, Respondent Department's Exhibit No. 1, indicating that the task of seeking written authorization from the dock owners had been achieved and that the affidavit of ownership of upland property owners was satisfactory. In fact, all adjacent property owners had not been notified of the pendency of the application request through the process of Horn's advising the Respondent agency of the names of all adjacent property owners to the uplands and the affidavit of ownership of the upland property owner at the dock site was not filed. During the review process, permission was given by the Department of the Army, Corps of Engineers, for the construction of the boat slip. A copy of this permission, by letter dated August 31, 1981, is Respondent Department's Exhibit No. 2, admitted into evidence. The Department of Environmental Regulation reviewed the permit application and prepared an application appraisal, which may be found as Respondent Department's Exhibit No. 5 admitted into evidence. The findings made by that application appraisal related to application review are found to be accurate. In particular the permit application appraisal indicated that the boat slip would be located at the waterward end of the existing dock structure, which existing dock structure accommodated four boats. The appraisal found that the project was located in South Putnam County in the town of Georgetown on the St. Johns River. The permit appraisal found that the project site would be located in the littoral zone of the river about one hundred feet waterward of the mean high water line. No littoral growth was seen at the depth of the proposed construction. Tapegrass, Mexican waterlily and cattail were present near the shore. Several large hardwood swamp trees were present at the shoreline. The project was found to be located in a Water Class III and adjacent waters were Class III according to the appraisal, no significant immediate or long-term adverse environmental impacts were to be expected to occur due to the completion of the boat slip. Horn was subsequently given a construction permit to add the boat stall to the existing dock. A copy of that permit may be found as Respondent Department's Exhibit No. 6 admitted into evidence. The only specific conditions related to that matter pertain to the necessity for the utilization of turbidity curtains throughout the project for purposes of containing the turbidity that might exceed State water quality standards, The permit was issued on September 22, 1981. After receiving the permit, sometime around October 20, 1981, Horn purchased the necessary lumber to construct the stall and on October 24, 1981, went to the dock site to begin the installation of pilings related to the construction of the boat stall. While placing the pilings on October 24, 1981, an adjoining property owner and Petitioner in this cause, Marshall Wolfe, stood on his dock, that is, Wolfe's dock, and hailed to Horn to stop building. Horn did not know Wolfe before that time and did not know that Wolfe, not Michal, was the adjacent property owner on that side of the dock. On October 28, 1981, Marshall Wolfe and his wife, Ann Wolfe, wrote to the Department in the person of G. Doug Dutton, Subdistrict Manager, and indicated that they were opposed to the issuance of the permit, which is under the number of the permit issued to Respondent, and requested a hearing on the question of the issuance. A copy of that correspondence may be found as Department's Exhibit No. 7 admitted into evidence. On the same date, October 28, 1981, Horn was contacted by the Department of Environmental Regulation and advised of the Wolfe complaint and Horn was told that he would receive a cease and desist order from the Department of Environmental Regulation. On October 30, 1981, Horn returned to the construction site and found four of his neighbors finishing the construction of the stall. In fact, the neighbors did conclude the construction and the boat slip remains in place. A cease and desist letter was mailed on November 2, 1981; however, this letter was not received by Horn immediately. Horn did subsequently learn of the contents of the letter some time in November or December, 1981. A copy of the cease and desist letter may be found as Respondent Department's Exhibit No. 8 admitted into evidence. On December 13, 1981, an attempt was made at the instigation of Department officials for the Petitioners and Respondent Horn to resolve the controversy. This effort was unsuccessful. As a consequence, a formal hearing was necessary in keeping with the request of the Department that the Division of Administrative Hearings conduct a Subsection 120.57(1), Florida Statutes, formal hearing. This request had been made on November 12, 1981, and an initial hearings had been scheduled for February 11, 1982, following consultation between the various parties and the Hearing Officer. At the initial hearing session on February 11, 1982, which was to be held in Palatka, Florida, counsel for Department indicated that the upland property was not owned by Horn and that easement rights to that property were unclear. In view of this fact the hearing was continued until the ostensible upland property owner could be notified of the pendency of the issuance of an environmental permit and be allowed to participate. Notification was subsequently provided by an Intent to Issue Statement, a copy of which may be found as Respondent Department's Exhibit No. 9 admitted into evidence. This notification was through the Department at the instigation of the Hearing Officer. The date of notification was February 12, 1982. An order was entered on March 17, 1982, which allowed the intervention of St. Johns Crescent Lakesites, Inc. into the proceedings and that party, in the person of its counsel, Lauren E. Merriam, III, Esquire, participated in the April 15, 1982 hearing. St. Johns Crescent Lakesites, Inc. is the owner of the upland property adjacent to the dock in which Horn had constructed the boat slip. No indication was given that any easement rights were ever granted by that corporation to grant access to the boat slip from the adjacent property. The overall dock area, in terms of square feet, is between 500 and 1000 square feet. Other than the permit application made by Horn, no other permission has been received by the Department to construct the other features of the dock. A further appraisal of the project site subsequent to the September 18, 1981, appraisal has been made. That appraisal was made by the field inspector for the Department. This appraisal by Melvin Rechtor agrees with the project appraisal made by the first field inspector, John Hendricks. The testimony of Melvin Rechtor on environmental impacts of the project are accepted as accurate. Rechtor's testimony established that the project would have an insignificant impact on water quality considerations and would not adversely affect the species or the conservation of fish, marine and wildlife or other natural resources. Rechtor's testimony established that there would be no unreasonable interference with waterward access of adjacent property owners. Rechtor's testimony also established that there would be no navigational hazard nor interference with fishing and swimming by persons using the river.
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 D.S.I. Forms, Inc. is a for-profit corporation with facilities in Palatka, Florida. It is the owner of a river- front house known as the "DSI Lodge," which is the location of the boat dock at issue here. The DSI Lodge has an existing boat dock similar to those of other waterfront homes in the area along this section of St. Johns River, which is a Class III Florida Water.1 The area is predominantly single family residential, but is not so restricted by zoning ordinance. The DSI Lodge is used as a weekend and holiday retreat by the owner of D.S.I. Forms, Inc., who resides in Atlanta, Georgia, and by his business and personal guests. Although the DSI Lodge has a business character, there is no charge to guests for using lodge or dock facilities. The proposed DSI dock extension would add a two-boat covered slip measuring 20 by 22 feet to the end of the existing dock. Since DSI only seeks mooring facilities for one additional boat,2 it has agreed with the Department of Natural Resources (DNR) to remove its inside boat slip. Although DNR was not a party to this proceeding, the Applicant's stated intent to remove a portion of the existing dock should be reflected in any permit issued by DER. The existing dock is approximately 700 square feet in surface area. With the application as now framed, the total surface area would exceed 1,100 square feet. However, with removal of the inside slip, the proposed dock area would apparently increase to less than 1,000 square feet, and thus may be exempt from DER permitting altogether.3 Petitioners presented a series of grievances concerning use of the DSI Lodge by inconsiderate guests. These complaints included discharging a rifle and fireworks, high speed operation of power boats adjacent to the river's edge (bulkhead) and congestion of boating activity resulting from numerous guests using the DSI facilities during holiday periods. The careless or congested boating activity may affect the quality of life for DSI Lodge neighbors and endanger wildlife such as manatee which sometimes inhabit these waters. However, it was not shown that the proposed dock extension would affect these environmental considerations since D.S.I. Forms, Inc. already owns and operates the boat which would be accommodated by the additional slip (see footnote 2 above). Further, the testimony of the DER field representative established that the presence of the extended dock, as well as its construction, would not degrade water quality.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order issuing the proposed permit to D.S.I. Forms, Inc. with an added condition requiring removal of the existing inside boat-slip. DONE and ENTERED this 26th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
