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 The Parties. It was stipulated at the commencement of the hearing that the facts alleged by Petitioner, Sarah E. Berger, and Intervenors, the Withlacoochee Area Residents, Inc. (hereinafter referred to as "WAR"), and Bernard Campbell in support of their standing were correct. Southern Hy-Power Corporation (hereinafter referred to as "Hy-Power"), is an applicant for a lease of property owned by the State of Florida. The president of Hy-Power is Robert Karow. The Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Board of Trustees"), consists of the Governor and Cabinet. The Board of Trustees is charged with responsibility for the administration of the property at issue in this proceeding. The Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department holds a sublease from the Board of Trustees of the property at issue in this proceeding. The Lease Property. Hy-Power has proposed to lease property owned by the State of Florida. The property at issue (hereinafter referred to as the "Property"), is located in Levy County, Florida. The Property is an irregularly shaped parcel consisting of approximately .61 of an acre. The Property is approximately 500 feet by 75 feet. The Property is located adjacent to, and on the south side of, a lock known as the Inglis Lock By-Pass Channel Spillway Dam (hereinafter referred to as the "Spillway Lock"). The Spillway Lock is located on the Inglis By-Pass Channel (hereinafter referred to as the "Spillway Channel"). The Spillway Channel connects Lake Rousseau with the Withlacoochee River. Lake Rousseau is located on a completed portion of a canal known as the Cross Florida Barge Canal. The Spillway Channel allows water to flow from Lake Rousseau and a portion of the Cross Florida Barge Canal which splits the Withlacoochee River into that portion of the Withlacoochee River which continues on to the Gulf of Mexico, approximately 11 miles upstream and to the west of the Property. Ownership of the Property. The Property was part of a larger parcel of property previously owned by George and Mertice Hawkins (hereinafter referred to as the "Hawkins Property"). The Hawkins Property was conveyed without restriction by the Hawkins to the Cross Florida Barge Canal Authority (hereinafter referred to as the "Canal Authority"), on February 1, 1965. The Hawkins Property is identified by a pink outline on DEP exhibits 1 and 3. 12 The Hawkins Property included parcels identified as 2000 E-5 and 2000- 2. The upland portion of the Property is located within parcel 2000 E-5. Parcel 2000 E-5 is identified by a blue outline on DEP exhibits 1, 2 and 3. The remainder of the Property, approximately 45 feet at the westerly end of the Property, is located in parcel 2000-2. The portion of the Property located in parcel 2000-2 is located entirely within the Spillway Channel. In 1966 the Canal Authority transferred ownership of parcel 2000-2 to the United States for use in the Cross Florida Barge Canal project. In 1967 the Canal Authority granted a permanent easement on parcel 2000 E-5 to the United States for use in the Cross Florida Barge Canal project. Other than the permanent easement held by the United Sates, the State of Florida has held continuous ownership of Parcel 2000 E-5 since 1965. The Cross Florida Barge Canal project was originally intended to provide navigation capacity across the State of Florida from just north of Crystal River on the Gulf of Mexico to the eastern terminus of the St. Johns River near Jacksonville, Florida. The United States conveyed its interest in parcels 2000-2 and 2000 E-5 to the State of Florida through the Board of Trustess by quit claim deed dated July 26, 1993. On June 8, 1993, the Canal Authority conveyed its interest in parcel 2000 E-5 to the Board of Trustees. Abandonment of the Cross Florida Barge Canal Project. In 1990 the United States abandoned the Cross Florida Barge Canal project and proposed to transfer lands intended for use in the project to the State of Florida. Section 402 of P.L. 101-640. Subsection "B" of Section 402 of P.L. 101-640 required that the State of Florida agree to certain conditions before ownership of lands which were intended for use as part of the Cross Florida Barge Canal project were transferred to it. During the 1990 session of the Florida Legislature, Chapter 90-328, Laws of Florida, was enacted providing for the use of former Cross Florida Barge Canal project property as part of the "Cross Florida Greenbelt State Recreation and Conservation Area". In January of 1991 the Governor and Cabinet passed a Resolution agreeing, on behalf of the State of Florida, to the terms and conditions of the abandonment of the Cross Florida Barge Canal project, including Subsection "B" of Section 402 of P.L. 101-640, imposed by the United States. Pursuant to the Resolution, it was stated that deauthorization of the Cross Florida Barge Canal project would be pursued "for the purpose of preserving, to the maximum extent possible, a greenbelt corridor of unspoiled wetlands, forests, and waterway, to provide a habitat for many endangered species and for public recreation." On August 30, 1992 the Board of Trustees approved the Florida Greenways State Recreation and Conservation Management Plan (hereinafter referred to as the "Management Plan"). The Management Plan sets out the intended uses of lands which were originally intended to be used as part of the Cross Florida Barge Canal, including the Property. The Management Plan was ratified by the Florida Legislature in 1993. Chapter 93-213, Section 48, 1993 Laws of Florida. Sections 48 and 49 of Chapter 93-213, Laws of Florida, was enacted to provide guidance and alternatives for establishing greenway boundaries and developing and maintaining greenway activities. No specific management plan recommendation was required to be implemented except as specified by statute. The Legislature has enacted Section 253.7829(1)(c), Florida Statutes: The development of hydro-electric power is a compatible use of greenway land and may be considered by the [Board of Trustees] as a allowable use within the greenways of Lake Rousseau and the lower Withlacoochee River, provided that such hydro-electric power complies with all requisite state and federal environmental and water management standards. The Board of Trustees leased the Hawkins Property to the Department's Office of Greenways and Trails by a Lease Agreement dated October 27, 1993. The Proposed Use of the Property. Hy-Power has proposed to construct and operate a hydroelectric power generating facility with an installed capacity of 2.8 to 3.0 megawatts on the Property. The proposed facility will consist of a single-pit turbine with gears, generator, and all appurtenances necessary to produce electric power. The proposed facility will utilize the available flows of water from Lake Rousseau passing through the Spillway Lock and Spillway Channel on the way to the lower Withlacoochee River. Such a facility is known as a "run-of-the- river" facility. Water flowing down the Spillway Channel will enter the upstream side of the facility, pass through the turbine rather than through the Spillway Lock gates, and be discharged into the existing tailrace 50 feet below the end of the Spillway Lock downstream wing wall. In order to construct the facility that will house the turbine an area immediately adjacent to, and south of, the Spillway Lock will be excavated. The proposed facility has been described, in part, as follows: It is proposed to construct a powerhouse adjacent to the By-pass Channel Dam on the south side of the conduit and will be about 28 feet wide by 115 feet long, plus an additional open concrete inlet channel of approximately 45 feet, drawing water from the Inglis By-pass Channel conduit, passing it through a single pit type turbine and dis- charging downstream of the Inglis By-pass Dam. Physical features of the proposed project are arranged for the installation of the pit type of generating unit. The waterway and powerhouse will be below grade with only the controls house and substation above grade. The forebay will be formed between the entrance to the By-pass Channel, the Inglis By-pass Dam and the turbine inlet. The intake will consist of an open channel, conrate and rip-rap, with the normal channel width of 98 feet widened to include the powerhouse along side the existing dam. The intake to the turbine would be protected by a long boom and trash rack. There is another trash rack at the entrance to the By- pass Channel. The rip-rapped portion of the intake channel (both sides) is approximately 175 feet long and 143 feet at its widest. . . . A small one story control building, approximately 10 feet by 20 feet in plan, will be the only portion of the powerhouse above existing ground level. A low profile substation about 25 feet by 25 feet in plan will be located adjacent to the control building. . . . See Southern exhibits 2 and 5. Part of the shoreline of the Spillway Channel will be eliminated to create ingress and egress of water from the Spillway Channel through the facility. Cofferdams will be used during construction. Once completed, no part of the facility will extend into the existing Spillway Channel. Rip-rap will be placed in part of the Spillway Channel to facilitate the flow of water through the facility. One power pole will also be placed on the Property to allow connection with an existing power line located on an existing Spillway Channel access road. The Proposed Sublease of the Property. The Lease Agreement to the Department's Office of Greenways and Trails requires that prior written consent of the Board of Trustees to any assignment of the lease, in whole in part, be obtained by the Department. On April 25, 1995, the Board of Trustees agreed to the execution by the Department of a 30-year sublease of the Property to Hy-Power with two, ten- year extensions (hereinafter referred to as the "Proposed Sublease"). It is the proposed approval of the Proposed Sublease that Ms. Berger and the Intervenors have challenged in this proceeding. The Proposed Sublease authorizes use of the Property "for purposes of producing electrical power subject to all the requirements and conditions contained herein." The Proposed Sublease requires that the sublessee, Hy-Power, "prevent any unauthorized use of the subleased premises not in conformity with the sublease agreement." The Proposed Sublease also provides that Hy-Power is responsible for "security, including fencing of the subleased premises as required by the sublessor." Conditions of the July 26, 1993 Quit Claim Deed. The July 26, 1993 quit claim deed from the United States to the State of Florida provides, in part, the following conditions: The State agrees to preserve and maintain a greenway corridor open to the public for compatible recreation and conservation activities along the project route over lands conveyed herein and lands acquired by the State or State Canal Authority and lands acquired along the project route in the future by the State or State Canal Authority, to the maximum width possible, as determined in the management plan to be developed by the State for former project lands. Such greenway corridor shall not be less than 300 yards wide, except for the following areas: Any area of the project corridor where, as of 28 November 1990, no land was owned by the State or State Canal Authority. Any area of the project corridor where, as of 28 November 1990, the land owned by the State or State Canal Authority was less than 300 yards wide. Any area of the project corridor where a road or bridge crosses the project corridor. . . . . (4) The State agrees, consistent with paragraph (2) above, and paragraph (5) and (6) below, to preserve, enhance, interpret and manage the water and related land resources of the area containing cultural, fish and wildlife, scenic and recrea- tional values in the remaining lands and interests in land acquired for the project, lying west of Sections 20 and 29, Township 15 South, Range 23 East, as determined by the State, for the benefit and enjoyment of present and future generations of people and the development of outdoor recreation. Intervenors' exhibit 2 and DEP exhibit 6. Attached to the deed as Exhibit "A" is a copy of the January 22, 1991 Resolution of the Governor and Cabinet. Exhibit "B" to the July 26, 1993 quit claim deed describes "Recreation Areas and Facilities" being transferred. Among other things, Exhibit "B" includes the "INGLIS RECREATION AREAS LOCATED ON TRACTS 2000-1 and 2000-2". In particular, the Inglis Recreation Area is described on Exhibit "B" as including "[e]leven picnic sites" and "[o]ne playground area." The portion of the Property to which the conditions of the July 26, 1993 quit claim deed from the United States apply consists of a part of parcel 2000-2 completely located within the Spillway Channel and an easement interest in the upland portion of the Property which was part of parcel 2000 E-5. Maximum Width of the Greenway Corridor. The maximum width of the greenway corridor at the site of the Property is approximately 1,525 feet. At the eastern end of the Property, the width of the greenway corridor is approximately 1,450 feet. The width of the portion of the greenway corridor from the northern edge of the Property to the northern boundary of the greenway corridor is approximately 230 feet. The width of the portion of the greenway corridor from the southern edge of the Property to the southern boundary of the greenway corridor is approximately 1,200 feet. The evidence failed to prove that the greenway corridor will be "less than 300 yards wide" as a result of the Proposed Sublease of the Property. Public Access. A gravel road provides vehicular access to the north side of the Spillway Lock. Pedestrian access to land located to the south of the Spillway Channel and north of a portion of a completed Cross Florida Barge Canal is currently available across the Spillway Lock. A gate prevents vehicular access over the Spillway Lock. The area located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal is used for recreational purposes such as bird watching and fishing. Two other points of access to the land located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal exist. One is a dirt road which runs from U.S. Highway 19 west of the Spillway Channel to the south side of the Spillway Lock. The other access point is located approximately 1 and 1/4 miles to the east of the Spillway Lock. Both access points are gated, allowing only pedestrian traffic. Access from the east requires a 1 and 1/4 mile walk. Access from the west requires a longer walk. The evidence, however, failed to prove that access to the area located immediately to the south of the Spillway Lock could not reasonably be provided by some other means, i.e., opening the area to vehicular traffic or building a foot bridge over the Spillway Channel at some other location. The evidence also failed to prove that access across the Spillway Lock will necessarily be prevented. While it is true that the Proposed Sublease requires that the Property be fenced, that requirement is limited to fencing "as required by the [Department]." The weight of the evidence concerning this requirement failed to prove that the Department will necessarily require that the fencing be placed on the Property in such a way as to prevent public access. It is possible that fencing could be required in such a way to prevent access to the facility to be constructed on the Property and still allow pedestrian access through a fenced corridor across the Spillway Lock and the Property. Recreational Uses of the Property. The evidence failed to prove that the Property itself is used for recreational purposes. There are recreational activities that take place around the Property. The evidence failed to prove that the proposed use of the Property will curtail the continuation of those recreational activities. The picnic sites and playground area referred to on Exhibit "B" of the July 26, 1993 quit claim deed are located just to the north of the Spillway Lock. They are located on part of parcel 2000-2. There is also a portable toilet located in the same area. The location of these facilities is circled in blue on DEP exhibit 2. At one point there were also 2 trash cans located south of the Spillway Lock. The area where the picnic sites are located has been in existence since 1992 or 1993. The area was designated as a "park" as part of an Adopt-A- Park program of the United States Army Corps of Engineers. WAR "adopted" the "park". The "park" is known as "Spillway Park". WAR considers Spillway Park to include the area immediately to the north and the south of the Spillway Lock. The evidence failed to prove the exact boundaries of Spillway Park or that any formal boundaries have ever been established. There are no recreational amenities south of the Spillway Lock and Spillway Channel. Florida Power Corporation Deed Restrictions. Lake Rousseau was originally impounded by construction of a dam known as the Inglis Dam for use in the production of electrical power. Florida Power Corporation operated a hydroelectric facility at Inglis Dam. Inglis Dam is located near the head of the Spillway Channel, east of the Spillway Lock. On April 7, 1965, Florida Power Corporation deeded certain lands to the State of Florida. Those lands are located in Citrus and Levy Counties and include the Inglis Dam. The April 7, 1965 Florida Power Corporation deed contains the following restriction: This grant is made and accepted upon condition that the lands, buildings, structures and improve- ments herein conveyed shall be used exclusively for public park and recreational purposes only, except those lands utilized in the operation of the Cross Florida Barge Canal, provided that no part or portion of any of those lands conveyed therein, together with the existing building, lock, dam, and waterways located thereon, or any buildings or structures hereinafter con- structed on said lands, shall be utilized in any way for the generation or production of electric energy. DEP exhibit 9. The water that flows from Lake Rousseau through the Spillway Channel passes through the property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is not located on any property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is located at least one mile from the property conveyed by the April 7, 1965 Florida Power Corporation deed. Hy-Power's proposed use of the Property does not entail the use of any property conveyed by the April 7, 1965 Florida Power Corporation deed. The evidence failed to prove that the Proposed Sublease of the Property is inconsistent with the April 7, 1965 Florida Power Corporation deed.
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 approving the execution by the Florida Department of Environmental Protection of the Proposed Sublease and dismissing the petitions of Ms. Berger and the Intervenors. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1996. APPENDIX Case Number 95-3589 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Berger's and the Intervenor's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 6-7, 26-27 and 29-30. 3 Accepted in 35-36. 4 Accepted in 37-38. 5 See 38. But see 52. 6 Accepted in 6-7. 7 Accepted in 7-9, 22 and 25. 8 Accepted in 16 and hereby accepted. See 21 and hereby accepted. Accepted in 19, 22 and hereby accepted. Accepted in 21. Accepted in 49 and hereby accepted. Accepted in 54. These proposed findings are based upon an unidentified document. They are hearsay. See 55. Accepted in 48 and 50. But see 51-52. 16-17 See 50-51. Too speculative. Not supported by the weight of the evidence. See 51-52. Accepted in 10-11 and hereby accepted. 20 See 12-15. Accepted in 15 and hereby accepted. Accepted in 12, 17, 39 and hereby accepted. Accepted in 41. But see 42. Accepted in 39. See 39. But see 40. 26-28 These proposed "findings" are argument. They are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 51-52. See 39 and 43-45. The last two sentences are not supported by the weight of the evidence. Accepted in 57-58 and hereby accepted. Accepted in 59. These proposed "findings" are argument. They are not supported by the weight of the evidence. See 63. The Board of Trustees' and the Department's Proposed Findings of Fact Accepted in 10-11. Accepted in 18. See 15. Accepted in 25 and 35. Accepted in 34. 5-6 Accepted in 13. Accepted in 14. Accepted in 13. Accepted in 15. Accepted in 17. Accepted in 61. Accepted in 6. Accepted in 43-45. Accepted in 39. Accepted in 49 and 55. See 55. Accepted in 50-51. Hereby accepted. See 61. Accepted in 22. Accepted in 23. Hy-Power's Proposed Findings of Fact Accepted in 2. Accepted in 4, 25 and 34. Accepted in 35. 4-5 Hereby accepted. Accepted in 7 and 26. Accepted in 8-9. Accepted in 9. Accepted in 28 and hereby accepted. Accepted in 29. Accepted in 30. See 30. Accepted in 31-32. Accepted in 32. Accepted in 33. Hereby accepted. Accepted in 6. Accepted in 22 and 25. Accepted in 43. Accepted in 44-45. Accepted in 10-11. Accepted in 13. Accepted in 15 and 18. Accepted in 12 and 14. 25-26 Accepted in 13. Accepted in 17. See 39. See 21 and 39. Accepted in 22-23. Accepted in 23. Accepted in 24. Accepted in 54. Accepted in 47. Accepted in 55. 36-37 Hearsay. See 55. Accepted in 55-56. Accepted in 48. Accepted in 50. Hereby accepted. Too speculative. Not relevant. 43-46 Hereby accepted. 47-48 Too speculative. Not relevant. Hereby accepted. See 51-52. Accepted in 38. 51-52 Hereby accepted. See 52. See 59. Accepted in 59. Accepted in 57, 61 and hereby accepted. Accepted in 61. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 Evelyn Davis Golden Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 Daniel H. Thompson, Esquire 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Scott Shirley, Esquire Timothy P. Atkinson, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Bob Bradley, Secretary Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
The Issue Whether Petitioner has been subjected to an unlawful housing practice by Respondents, as alleged in the Amended Housing Discrimination Complaint filed by Petitioner on May 30, 2008.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Eduardo Mory is a dark-skinned Peruvian. In July 2004, he purchased a condominium unit at 276 Timber Run Way, Cocoa, Florida. The condominium unit was part of a condominium development governed by Northwest Lakes pursuant to a declaration of condominium dated September 24, 1998. In 2001, Northwest Lakes negotiated a bulk cable television service and easement agreement with Time Warner Communications, which became Bright House Networks in the Orlando market in 2003. Under the terms of the agreement, Northwest Lakes pays Bright House a monthly service fee for each of its 250 units. The fee is discounted from the standard rate that a unit owner would pay if he purchased service directly from Bright House. Pursuant to its declaration of condominium, Northwest Lakes passes the bulk cable fee through to each unit owner as a common expense. The fee is included in the unit owner's monthly maintenance fee. As of 2008, the monthly maintenance fee for unit owners in Northwest Lakes was $130.00, which included $28.00 for the bulk cable fee. In a letter to Mr. Mory dated February 22, 2008, Linda Miklosovic, the new president of Northwest Lakes, wrote that it had come to her attention that Mr. Mory had not paid the bulk cable fee for several years. She calculated that for the years 2006, 2007, and 2008, Mr. Mory owed $1,132.00 in maintenance fees, of which roughly $600 consisted of unpaid bulk cable fees. Mr. Mory responded that he was not required to pay the bulk cable fee. Mr. Mory had never wanted cable service in his unit. He testified that in 2006, he had arrived at an arrangement with Donald Feeser, then the president of Northwest Lakes, whereby he would not have to pay the bulk cable fee. The details of the arrangement between Mr. Mory and Mr. Feeser were not entirely comprehensible.1 However, those details are not of particular importance as this hearing is not intended to resolve the monetary dispute between Mr. Mory and Northwest Lakes. Mr. Feeser testified that he told Mr. Mory that he did not have to pay the bulk cable fee. Mr. Feeser testified that the issue was discussed at a meeting of the full Northwest Lakes board, but that the board did not vote on whether to waive the fee for Mr. Mory. Correspondence went back and forth between Mr. Mory and Ms. Miklosovic. Mr. Mory accused Ms. Miklosovic and Northwest Lakes of "stereotype discrimination." Ms. Miklosovic was adamant that no unit owner was excused from paying the bulk cable fee. She testified that she had confirmed this position with Bright House. She searched Northwest Lakes' records for some document to support Mr. Mory's exemption claim, but could find none. On May 12, 2008, Ms. Miklosovic sent Mr. Mory a final notice, giving him until May 23, 2008, to bring his account up to date or face legal proceedings. On July 31, 2008, counsel for Northwest Lakes sent Mr. Mory a demand letter for $1,076.43. At the hearing, Mr. Mory testified that he is the only black person in a 340-unit community, and believes that the actions of Ms. Miklosovic and Northwest Lakes are premised on a feeling that he does not belong there. While he offered testimony regarding disputes with Northwest Lakes over parking a recreational vehicle, Mr. Mory could provide no specific examples of speech or behavior by residents of the condominium or by officers of Northwest Lakes that in any way referenced his skin color or national origin, or that could even be inferred as discriminatory. Ms. Miklosovic credibly testified that this is simply a collection dispute. She provided records demonstrating that every unit in Northwest Lakes is billed for the bulk cable fee. She testified that every unit owner except Mr. Mory pays the bulk cable fee. At the time she sent the February 22, 2008, letter, Ms. Miklosovic had not met Mr. Mory.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of February, 2009.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Findings Of Fact The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following: The proposed extension would disrupt historical patterns of localized navigation. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.
Findings Of Fact Dredge And Fill Permit And Consent Order 1.01 Background On December 10, 1992, the Department issued a dredge and fill permit pursuant to Florida Administrative Code Rule 17-312. 1/ The permit was issued to Hubbard in care of Dock Masters of Homosassa, Inc. ("Dock Masters"). Dock Masters is the entity responsible for the project. The project is located in a lagoon off Kings Bay, in the Crystal River in Citrus County, Florida. It is in a man-altered Class III waterbody in Section 28, Township 18 South, Range 17 West, on Lot 15, West Baywater Court. The permit authorized construction of an 883 square foot single family dock and 70 foot retaining wall. The permit required Hubbard to create 346 square feet of wetlands as mitigation and to dedicate all remaining wetlands on the site as a conservation easement to the Department. The dock is constructed several feet east of the permitted location and is built in a slightly different configuration. The permitted square footage over the water is reduced in the dock actually constructed by approximately 20 feet. About 10 feet of fill is added to wetlands. Hubbard notified the Department of the discrepancy between the permitted dock and the dock actually constructed. In July, 1993, the Department inspected the site and determined that the dock was not constructed in accordance with the permit. The Department determined that there was a violation of the permit. The location and configuration of the dock actually constructed did not comply with the permitted plans. However, the Department determined that the dock actually constructed was permittable. The Department entered into a Consent Order with Dock Masters approving the dock actually constructed. The Consent Order imposed civil penalties of $932 and costs of $150 but required no corrective action. During the formal hearing conducted on March 8-9, 1994, Hubbard requested that the dock actually constructed be shortened 3.5 feet and that a four foot section of the west side of the dock be removed (the "as-built dock"). Modifications included in the as-built dock are minor. They merely reduce the size of the dock and do not create additional adverse impacts. Petitioner is an adjacent land owner to the as-built dock. Petitioner's dock is configured, more or less, parallel to the shore line. The as-built dock on Hubbard's property is configured, more or less, perpendicular to the shore line. The as-built dock extends farther into the lagoon than does Petitioner's dock. In addition, the as-built dock is situated between Petitioner's dock and the confluence of the lagoon and King's Bay. Navigation The as-built dock does not adversely impact navigation. The as-built dock extends approximately 37 feet into the lagoon. The lagoon is approximately 197 feet wide at the project site. There is 160 feet of open water in which to navigate past the as- built dock. Depths in the open water beyond the end of the as-built dock are adequate for navigation. During low tide, depths in the lagoon at the project site are: 3.5 feet at the end of the as- built dock; 5.0 feet, 40 feet from the end of the dock; 4.4 feet, 80 feet from the end of the dock; and 3.0 feet, 120 feet from the dock. The as-built dock does not adversely affect boaters' ingress and egress into and out of the lagoon. The center of the navigational channel in the lagoon is approximately 40 feet from the edge of the as-built dock. In extremely low tides, areas around the as-built dock will go dry before the center of the navigational channel goes dry. Boat traffic in the lagoon is sparse at the project site. Boats using the lagoon are required to travel at idle speed. The speed limit is posted on signs in the lagoon. The as-built dock does not present a navigational hazard. The dock is easily seen and is lighted at night. Manatees The as-built dock will not adversely impact manatees. The area around the project site is not a core area for manatees. The as-built dock is a single family dock with a berth for one boat. The U.S. Fish and Wildlife Service and the Department's Threatened and Endangered Species Section have responsibility for protecting manatees. Both agencies were contacted regarding the Hubbard dock. Neither agency objects to the as-built dock. Manatees congregate around large springs. There are no large springs near the project site. The two nearest manatee sanctuaries are approximately 2,000 feet from the as-built dock. No boating or snorkeling is allowed in the manatee sanctuaries during manatee season. Boat traffic in the lagoon where the as-built dock is located is limited to idle speed. Manatees feed on hydrilla. Hydrilla is the predominant submerged plant around the project site. The as-built dock has no significant adverse impact on hydrilla in the area. Even if the as-built dock had an adverse impact on hydrilla, the as-built dock will not significantly reduce the amount of hydrilla available for manatee feeding. Hydrilla is an exotic plant that crowds out native plants. Hydrilla is harvested or treated with herbicides by Citrus County to try to control the growth of hydrilla. Citrus County attempted to control the growth of hydrilla by harvesting or treating approximately 666 acres of hydrilla in 1992 and approximately 580 acres in 1993. Other Potential Impacts The as-built dock will not cause any other adverse impacts to the public interest. The as-built dock does not adversely affect the property of others living on the lagoon and does not prevent reasonable access to any other property on the lagoon. The as-built dock does not adversely affect public safety. The dock is highly visible and is lighted at night. The project is located in an area in which boat traffic is limited to idle speed. The as-built dock does not adversely affect the conservation of fish and wildlife species, including threatened or endangered species, or the habitats of such fish and wildlife species. Aquatic habitat around the as-built dock is functioning normally. Shoreline vegetation is relatively natural and includes sawgrass, arrowhead, cedars, and red bay trees. The mitigation area has been correctly initiated and is now tending toward success as plantings mature. Use of the as- built dock avoids damage to shoreline and submerged vegetation that otherwise may occur if a boat were brought to shore in the absence of the dock. Various species of fish use the area, but the primary species is mullet. The retaining wall will benefit fish and wildlife habitat by preventing fertilizer and other yard chemicals from draining directly into the lagoon and causing water quality problems. Fish and wildlife habitat is further protected from adverse impacts by permit conditions. Permit conditions prohibit live-aboard boats, fueling facilities, and fish cleaning facilities at the dock. Cumulative Impacts The as-built dock and similar facilities in the area will not have a cumulative adverse impact on fish and wildlife habitat, endangered species, or navigation. Hubbard conveyed a conservation easement to the Department covering the remaining 400 feet of her shoreline. No future permitted or permit exempt docks can be built on Hubbard's shoreline. Remaining wetlands on-site will be preserved in perpetuity. Few docks and seawalls can be constructed in the area in the future. Substantially all of the residential lots in the area along the lagoon have: already been built out; already have water dependent facilities such as docks and slips; and already are sea-walled or rip-rapped. The state's land acquisition program (the "P-2000 Program") is seeking to acquire major tracts along the Crystal River in nearby areas. Those acquisitions will prevent similar future development in areas farther from the as-built dock. Benefits To The Public Interest The as-built dock has resulted in benefits to the public interest including the conservation easement over 400 feet of shoreline and wetlands. The conservation easement will benefit the public interest by permanently preserving fish and wildlife habitat. The as-built dock helps prevent prop dredging that may otherwise occur if a boat were kept on the shoreline in the absence of a dock. The retaining wall will reduce fertilizer and yard chemical runoff into the lagoon. Consent Of Use Background The Department notified Hubbard on September 2, 1994, that the as-built dock and retaining wall are located on sovereign submerged lands. Hubbard applied for an after-the-fact consent of use pursuant to Florida Administrative Code Chapter 18-21. On September 20, 1994, the Department issued an after- the- fact consent of use on Project No. 091923403 to allow Hubbard to maintain and use the dock on sovereign submerged land. Review Of The Dock The as-built dock was reviewed by Mr. Todd A. Vandeberg, Planning Manager for the Department's Southwest District, Mr. Henry Michaels, and Mr. Matt Clements in accordance with Rule 18- 21 and the Department's guidelines and policies for issuing consents of use for single family docks. See, Submerged Lands Environmental Resources Program Operations and Manual, Volume III (the "Operations Manual"). Mr. Michaels and Mr. Clements performed an on-site compliance check with respect to the as- built dock in accordance with Rule 18- 21 and the Operations Manual. The as-built dock is not contrary to the public interest. The dock preempts less than 1,000 square feet of sovereign land for each 100 linear feet of shoreline owned by Hubbard. The dock meets the 25 foot setback requirements of the Board. The dock extends only to a depth of three feet rather than the four foot depth allowed. The dock extends across only 19 percent of the width of the lagoon. Intent And Purpose Of The Board The as-built dock insures maximum benefit and use of sovereign submerged lands for all citizens of Florida. The dock does not prevent the continued enjoyment of traditional uses of the lagoon by the public including navigation, fishing, and swimming. The as-built dock extends into the lagoon only as far as necessary. 2/ The as-built dock does not constitute a navigational hazard. The as-built dock provides maximum protection for the management and use of sovereign submerged lands including public recreation and fish and wildlife propagation and management. Hubbard provided a conservation easement along the majority of her shoreline. The easement is being well maintained. Issuance of the consent of use was coordinated with the Department's regulatory staff. The as-built dock minimized or eliminated the cutting, removal, and destruction of wetland vegetation. The as-built dock will not adversely impact manatees or their habitat. The as-built dock aids in the implementation of the State Lands Management Plan. It is consistent with the state's overall management plan for the management of all sovereign lands. The as-built dock is consistent with the Board's specific standards and criteria for siting docking facilities. 3/ The consent of use contains terms, conditions, and restrictions sufficient to protect and manage sovereign lands. The consent of use contains general conditions established by the Department pursuant to Chapter 253, Florida Statutes, 4/ and Rule 18-21. The as-built dock is a water dependent facility. It is not enclosed or climatized for human habitation. The primary purpose of the dock is to moor a vessel. Secondary uses include fishing and recreational activities such as swimming and sun bathing. 5/ The primary purpose and secondary uses for the as-built dock are consistent with the Board's stated goal that all sovereign lands are single use lands which should be managed for traditional recreational uses such as fishing, boating, and swimming. The dock provides ingress and egress to the lagoon and provides a safe place to moor a boat. No significant adverse impacts will result from Hubbard's use of sovereign lands and associated resources, including fish and wildlife habitat and endangered and threatened species. A conservation easement along a majority of the Hubbard shoreline protects existing resources beyond the area of the dock. The as-built dock was designed and constructed to minimize or eliminate cutting, removal, and destruction of wetland vegetation. 6/ No dredging of sovereign lands was required to construct the as-built dock. The as-built dock protects the riparian rights of adjacent property owners. The as-built dock meets applicable setback requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Hubbard's application for a permit and consent of use, approving the consent order entered into between the Department and Hubbard, and denying Petitioner's request for attorney fees. RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1995.
The Issue The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18. The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat. David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway. The Trustees own the lands lying below the mean high water line of the Matanzas River. The Permit and Lease Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property. Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit. The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls, it is apparent that this was for the purpose of showing interior areas, such as the slips. Although difficult to see, one drawing indicates a doorway on the lower level. The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes. On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property. General Condition (a) of the permit states: All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit. On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the Department permit, which was incorporated into and made a part of the lease.2/ Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence." Paragraph 7 of the lease states in pertinent part: This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining . . . the Lessor's written authorization in the form of a modified lease. Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor." The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71): "Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity. The lease was issued for a term of five years. It expired on January 12, 2009. Enforcement History Respondents began construction of the dock and boathouse in February 2004. A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint. Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure. Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit. Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place." Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection. Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place. Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance. The structure shown in the photographs taken on July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip. The Department did not communicate with Respondents about the July 9, 2004, inspection. The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance." General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations." Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project. On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done. Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection. The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted." Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed." Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse. Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable. It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted. The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure. In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows. On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.” Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view. Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit. On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp. During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.” Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings. On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category - Let's talk." However, the record does not include any explanation of this handwritten comment. Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent. On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower. In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks." The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit. Respondents did not submit an as-built to reflect the final construction of the dock and boathouse. The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent. Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent. Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent. Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting. On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station. Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear. There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait. Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level). The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance Respondents claim that they relied on the Department's representations following the Department's inspections of the construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit. The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent. Respondents presented no evidence to show that similar boathouses have been authorized by Department permit. David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered. The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans. David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department. Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance. Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above. DONE AND ENTERED this 29th day of September, 2010, 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 29th day of September, 2010.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
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
