Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON 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 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER 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 December, 1992.
The Issue At issue in this proceeding is whether Respondents Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005 (collectively referenced herein as "Applicants") qualify for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities in regard to a dune walkover structure seaward of the CCCL at the end of Milliken Lane in St. Johns County, as provided in the Amended Exemption Determination issued by the Department of Environmental Protection ("Department") on September 8, 2011.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: The proposed project site is located at the seaward end of Milliken Lane, in the development known as "Milliken's Replat," in Crescent Beach, Florida. The development consists of 10 lots between State Road A1A and the Atlantic Ocean. The privately maintained Milliken Lane runs west to east, perpendicular to A1A. Milliken Lane bisects the 10 lots, i.e., five lots are on each side of the lane. Lots 1 through 5 are on the north side of Milliken Lane, and Lots 6 through 10 are on the south side. Lots 5 and 6 are the largest lots and are the lots nearest the ocean. Petitioner Anastasia, Inc., owns Lot 5 and Petitioner Amanda Pope owns Lot 6. The sole officer and shareholder of Anastasia, Inc., is Kenneth Pfrengle. The remaining eight lots are owned by Applicants, as follows: Steven Frey owns Lot 1; Daniel and Donna Grace own Lot 2; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4; Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own Lot 8; Joseph and Dottie Scruggs own Lot 9; and Thompson and Dana Filmer own Lot 10. Milliken's Replat was duly recorded on October 11, 1983, in the Public Records of St. Johns County, Florida, Map Book 15, Page 100. The Milliken's Replat graphic representation of the development shows a line between Lots 5 and 6 and indicates that it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH." The indicated walkway begins at the end of Milliken Lane and extends at least to the CCCL.2/ The walkway straddles Lots 5 and 6, the two lots owned by Petitioners. Milliken's Replat is also subject to a Road Maintenance Agreement recorded by the original developers on January 28, 1994, in the Public Records of St. Johns County, O.R. 1034, Page 1596. The Road Maintenance Agreement provides for the continuing maintenance of Milliken Lane and "That certain six foot wide walkway reflected on the plat running between the cul-de-sac at the end of Milliken Lane to the Atlantic Ocean, including existing dunes walk-over structure." The Road Maintenance Agreement goes on to provide as follows, in relevant part: Such road and walkway shall be maintained by the parties to this agreement, their heirs, successors and assigns in a condition so as to make it free and passable in perpetuity. The costs of the maintenance of said road and walkway shall be shared to the end that each lot owner shall pay one-tenth of the cost associated with maintenance costs. Owners of multiple lots shall be responsible for one-tenth of the cost for each lot owned. * * * 5. In the event that sixty percent of the lot owners determine that maintenance work is necessary and contract to complete same, they shall have the right to maintain a lien against any lot owner who refuses to pay the assessment pursuant to the provisions of this agreement. Unless waived, each lot owner shall be given a minimum of ten (10) days' written notice of the proposed meeting to determine assessments.... Petitioners purchased their respective lots subject to the terms of Milliken's Replat and the Road Maintenance Agreement. On March 11, 2011, Applicant Dan Grace sent a notice to the "Property Owners of Milliken Lane" stating that a meeting to discuss the maintenance of Milliken Lane would take place on March 24, 2011, pursuant to paragraph 5 of the Road Maintenance Agreement. The notice went on to state that the walkover "is in need of maintenance to maintain and preserve the integrity of the existing walkover," and that a proposal for the cost of repair would be presented at the meeting. Finally, the notice stated that a vote on the proposal would be taken at the meeting. Mr. Grace contacted Rick Powell, owner of Barefoot Marine Construction, to provide a quote for the repair and maintenance of the dune walkover. Mr. Powell visited the site, took measurements, and provided a quote to Mr. Grace prior to the March 24, 2011, meeting. On March 22, 2011, Daniel Mowrey, counsel for Applicants, had a telephone conversation with West Gregory, an attorney in the Department's office of general counsel, regarding the proposed repair and maintenance to the dune walkover. The next day, Mr. Mowrey followed up with a letter to Mr. Gregory that included copies of Milliken's Replat and the Road Maintenance Agreement. The Applicants' chief concern was Mr. Pfrengle's contention that the repair of the walkover was subject to his consent as the owner of the property on which the walkover sits. Mr. Mowrey stated his clients' position as follows: I believe the Department has taken the position this matter has to do with Title and/or Ownership to the property whereon easement lies. This matter is clearly not about ownership. The fact the easement lays on the property of Mr. Pfrengle and Amanda Pope is not a matter of contention. There is no authority I can find that forces the Department to obtain permission from Mr. Pfrengle or Ms. Pope to issue this permit. The Road Maintenance Agreement controls and is clear as to the rights of all owners in the Milliken Replat. Denial of a permit from the Department to maintain, repair and/or replace the existing walkover is unreasonable. All members of the Milliken Replat have sufficient title interest through the easement and Road Maintenance Agreement to make application based on recorded rights. It appears the Department has made the interpretation of title interest as meaning right of possession. This is clearly flawed. I am fully aware that this matter may end up in Circuit Court to resolve this dispute. I want to be clear in my representation of my clients. If the Department is going to deny this request for a permit, I would like to know the legal justification for doing so. The recorded documents are clear and speak for themselves. While Mr. Pfrengle may not want the walkover replaced, he agreed to the provisions of the easement and Road Maintenance Agreement when he purchased his home as shown on the recorded instruments. If my clients are required to fill out a formal written request for a permit, please notify me and provide the proper documentation for that request. . . . The owners' meeting was held on March 24, 2011, pursuant to the March 11 notice. All of the Applicants voted in favor of the repairs and maintenance to the dune walkover,3/ making an eighty percent majority for the work to proceed. Petitioners did not attend the meeting. Also on March 24, 2011, Mr. Gregory sent an email to Mr. Mowrey that read as follows, in relevant part: After discussing this matter with the Department's permit processor and Mr. Mowrey, it appears your proposed activity may be eligible for an exemption. If you would like to pursue an exemption determination, please send a letter requesting the exemption to the Bureau. The items to include in the request are listed in 62B-33.008(11). . . . Late on the afternoon of March 24, 2011, Mr. Mowrey on behalf of his clients emailed a written request for an exemption from the CCCL permit requirements to David Kriger, permit manager for the Bureau. On March 30, 2011, the Department issued the Exemption Notice quoted in the Preliminary Statement, supra. On April 14, 2011, Rick Powell of Barefoot Marine Construction provided a verbal description of the walkover project to Fritz Wettstein, environmental manager of the CCCL program. The project plans included the use of "sister" posts directly abutting and fastened to the existing posts to support the repaired structure. Robert Morgan, a licensed professional engineer whose company worked on the project for Barefoot Marine, testified that the timber in the existing walkover was old, possibly warped, and did not provide a pure nailing surface. However, the impact on the dune topography of pulling out the old posts for replacement would have been "tremendous." "Sistering" the new posts to the old ones would provide the needed support while minimizing environmental impact. On April 23, 2011, Mr. Morgan's company, RGM Engineering, Inc., provided the Applicants with two sets of structural drawings/engineering plans for the dune walkover, one of which was accepted and ultimately built. The plan that was built was designed and measured to be an exact duplicate of the existing walkover in all dimensions. The second plan would have lowered the rebuilt walkway, making it less visually obtrusive to Mr. Pfrengle and Ms. Pope. On September 8, 2011, the Department issued the Amended Exemption Determination quoted in the Preliminary Statement, supra. Based on Mr. Powell's project description, the Department determined that the project was exempt pursuant to section 161.053(11)(b), Florida Statutes. On September 16, 2011, Bureau field inspector Trey Hatch conducted a site inspection of the proposed construction area and beach dune system. Mr. Hatch's written inspection report stated that the existing walkover, "located within a 6' easement area used by local neighborhood," appeared to be in need of repair or replacement due to the age of the wood and support hardware. Mr. Powell testified that his company waited 21 days after the issuance of the Amended Exemption Determination before commencing work on the walkover. Mr. Powell's company performed all the work. The digging of postholes was done by hand, without the use of machines. Only two workers were on the ground at a time, and only those materials immediately required were carried to the walkover. Materials were passed up and down to the workers on the structure to minimize disturbance to the dune system. Mr. Morgan testified that the new posts were placed about five feet into the ground, to the depth of the old posts. Nearly every old post was sistered to a new post, and most of the walkover's structure was replaced. Mr. Morgan stated that the repaired walkway had a slightly larger east-west footprint due to the sistered posts, but that the north-south footprint was exactly the same as that of the old walkover. As noted above, the Department's Amended Exemption Determination found the Applicants' project exempt pursuant to section 161.053(11)(b), which provides: Activities seaward of the coastal construction control line which are determined by the department not to cause a measurable interference with the natural functioning of the coastal system are exempt from the requirements of subsection (4).4 Florida Administrative Code Rule 62B-33.008 implements section 161.053. Subsection (11) of the rule provides specificity to the exemption provided by section 161.053(11)(b) as follows: Requests for the Department to determine that the proposed activity is exempt from permitting pursuant to the provisions of Section 161.053(11)(b), F.S., shall include, at a minimum, a survey meeting the requirements of Rule 62B-33.0081, F.A.C., and the information requirements of paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), and subsection 62B-33.008(5), F.A.C. The Department recognizes that the requirements specified above may not be necessary to make an exemption determination. In such cases, the applicant shall, as part of the request for exemption, identify those requirements and state the reason why they are inapplicable. The Department shall waive requirements that do not apply. The "information requirements" of rule 62B-33.008 referenced in the quoted portion of the rule are as follows, in relevant part: (3) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) or 50-foot setback from the Department. . . shall submit two (2) copies of a completed application form to the Bureau . . . The application shall contain the following specific information: * * * Two copies of a dimensioned site plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the state of Florida. The site plan shall include: The locations and exterior dimensions of all proposed structures, including foundations and other activities, and the bearings and distances from the CCCL or 50- foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore- protection structure. Dimensions and locations of the foundation outlines of any existing structures on adjacent properties and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any existing structures or the seaward limit of any coastal or shore-protection structure. These measurements shall include all structures that the applicant contends have established a reasonably continuous and uniform construction line for permits requested under the provisions of sections 161.052(2)(b) or 161.053(5)(b), F.S. Dimensions and locations of the foundation outlines of any existing structures on the subject property and distances from the CCCL or 50-foot setback to the seaward corners of the foundations of any major structures or the seaward limit of any coastal or shore-protection structure. The horizontal location of the erosion control line (if one exists), any contour lines corresponding to elevation 0.00, the approximate contour of mean high water and the seasonal high water, and the horizontal location of the seaward line of vegetation and outlines of existing natural vegetation. The horizontal location of the CCCL or the 50-foot setback (if no CCCL is established for the county in which the property is located) for the full width of the subject property, including the location and full stamping of the two nearest Department or published second order or higher horizontal control points. The location and dimensions of the property boundary, rights of way, and easements, if any. The property owner and project name, street address, scale, north arrow, sheet number, and date of drawings. The location of work limits, construction fences, and dune features and vegetation to be protected during construction. Two copies of a dimensioned grading plan. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The grading plan shall include: Existing and proposed elevations, contours and spot elevations. For any proposed excavation or fill: A table of all permanent, temporary, and net excavation and fill volumes seaward of the CCCL; The storage locations and description of handling methods for all temporary excavation and fill material; and Soil and geotechnical data for beach compatible imported or excavated material proposed for placement on the beach seaward of a frontal dune or on the sandy beach. Two copies of dimensioned cross- sections. The drawings shall be signed and sealed by an architect, engineer, landscape architect, or professional surveyor and mapper (as appropriate) licensed in the State of Florida. The cross-sections shall include a typical view from the mean high water line to the CCCL depicting all structures and building elevations, proposed and existing grades, subgrade construction, excavation, fill, and elevations for any proposed or existing rigid coastal structures. * * * (p) Details, including engineering design computations, for any proposed waste or storm water discharge onto, over, under, or across the beach and dune system, such as storm water runoff, swimming pool drainage, well discharge, domestic waste systems, or outfalls. . . (r) Two copies of detailed planting plans, including the location of proposed plants, existing native vegetation, and plants to be removed. Plans shall include a plant list with both scientific and common names. * * * (5) The staff shall require the applicant to provide other site specific information or calculations as is necessary for proper evaluation of the application. The dimensions for the plans referenced in this section shall be submitted in U.S. Customary System units. Structures shall be located with distances measured perpendicular to the control line, 50-foot setback line, or the mean high water line, as appropriate. All elevations in this rule shall be referenced to NAVD 88 (U.S. survey foot). Site, grading, drainage, and landscape plans as well as cross-sections shall be drawn to a scale no smaller than 1'' = 40' in the horizontal dimension. Mr. Morgan testified that a survey was not required for this project because the plan was simply to replace an existing walkover that was already on the ground. The existing footprint would be maintained during construction. Mr. Morgan testified that because the project was being undertaken within the confines of an existing structure, there was also no need for a dimensioned site plan or a dimensioned grading plan. Mr. Morgan testified that it was necessary to provide dimensioned cross-sections to ensure that the renovated walkover conformed exactly to the dimensions of the existing walkover. Those cross-sections were provided to the Department. Mr. Morgan testified that it was not necessary to provide details, including engineering design computations, for any proposed waste or storm water discharge onto or over the beach and dune system because no impervious surface was being added. Mr. Morgan testified that it was not necessary to submit planting plans because the dunes were not being disturbed. Mr. Morgan testified that no other site-specific information or calculations were necessary for the exemption application "because it was all straightforward. There again, it's an existing structure." Tony McNeal, the administrator of the CCCL program, testified as an expert in coastal engineering. Mr. McNeal also addressed the criteria for obtaining an exemption pursuant to rule 62B-33.008(11), and concluded that none of the items listed in subsection (11) were necessary for the Department to determine that the project would not cause a measureable interference with the natural functioning of the coastal system. Petitioners offered no evidence that the requirements of rule 62B-33.0081, paragraphs 62B-33.008(3)(l), (m), (n), (p), (r), or subsection 62B-33.008(5) were necessary to make an exemption determination pursuant to section 161.053(11)(b). The evidence demonstrated that the Applicants identified which of those requirements were inapplicable and why, and that the Department waived the inapplicable requirements. The unchallenged testimony of Mr. Morgan and Mr. McNeal established that the proposed project would not cause a measurable interference with the natural functioning of the coastal system, and that the criteria for the grant of an exemption from the CCCL permitting requirements were met in this instance. However, the finding that the proposed project would meet the exemption criteria of section 161.053(11)(b) does not end the inquiry. Petitioners contend that Applicants' project is simply not the kind of project to which the section 161.053(11)(b) exemption provision is intended to apply. Rather, this project was of the type contemplated by section 161.053(11)(a), which provides in relevant part: The coastal construction control requirements defined in subsection (1) and the requirements of the erosion projections in subsection (5) do not apply to any modification, maintenance, or repair of any existing structure within the limits of the existing foundation which does not require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure.... Petitioners contend that because it included "additions to, or repair or modification of" the walkover foundation, the project should have been required to seek a CCCL permit. Petitioners argue that the project as a whole constituted a replacement of the existing walkover, not merely repairs and maintenance. As such, it was not the type of activity that the Department should have considered for exemption under section 161.053(11)(b). Petitioners offered documentation from the Department's files indicating that no beach walkovers have been granted exemptions from the need to obtain at least a field permit.5/ Trey Hatch, a senior field inspector for the Bureau, testified that he has never issued an exemption for a dune walkover. He stated that he issues "quite a few" field permits for walkover structures. These include permits for new walkovers, additions, and repair and rebuilding. Mr. Hatch stated that aboveground repairs to walkovers typically do not require permits. He testified that he has issued field permits for such repairs in order to assist homeowners in obtaining building permits from local authorities. However, foundation modification such as digging holes, replacing posts or modifying the structure outside its existing dimensions would require a permit. Mr. McNeal testified that the Department regularly issues permits for dune walkovers and has issued more than a thousand such permits over the years. To his knowledge, the Department has never granted an exemption under section 161.053(11)(b) for a walkover structure prior to the instant case. Despite this lack of precedent, Mr. McNeal, who has been the administrator in charge of the CCCL program since 1998, expressed confidence that a permit was not required for this project because the proposed activity would not cause a measurable interference with the natural functioning of the coastal system. Petitioners contend that the walkover was not "repaired" nor was it the subject of "maintenance." They assert that the walkover was replaced from the foundation up, and that such replacement makes the Applicants' project ineligible for exemption. Petitioners state that digging and setting of new posts constituted modification of the foundation that required a permit under section 161.053(11)(a). The Department replies that the exemption was not granted pursuant to section 161.053(11)(a) but under the standard set forth in section 161.053(11)(b). Therefore, Petitioners contentions regarding the repair or replacement of the walkover's foundation are irrelevant. In similar fashion, the Department dismisses Petitioner's contention that the sistered posts violated Florida Administrative Code rule 62B-34.050(19)(b), which provides: Elevated walkovers that provide access to the beach shall meet the following design criteria: * * * (b) The piles for the walkover structure shall not be greater that [sic] four by four inch posts and shall not be encased in concrete. Petitioners point out that by sistering the new four- by-four posts to the existing four-by-four posts, Applicants have created piles for the walkover structure that are now four inches by eight inches, in excess of the maximum allowed by the quoted rule. However, the Department points out that the quoted rule sets forth the conditions for general permits for activities seaward of the CCCL, in particular for a new dune walkover structure. As such, the rule is irrelevant to a consideration of whether the repairs to the already existing walkover meet the specific criteria for an exemption pursuant to section 161.053(11)(b) and rule 62B-33.008(11). Petitioners argue that a form of estoppel should apply to the Department's grant of an exemption in this case because of prior Department actions regarding the same walkover. In 2005, one of the Applicants in the instant case, Paul Linger, obtained a field permit to repair the stairs on the walkover and to install a cantilevered bench seat. Controversy ensued when both Ms. Pope and Mr. Pfrengle objected and insisted on removal of the bench seat. The Department ultimately decided that Mr. Linger had installed the bench seat farther seaward than the permit allowed, and that the seat extended beyond the easement onto Ms. Pope's property. Ms. Pope also raised the question whether Mr. Linger had the authority to obtain the permit without her permission. Jim Martinello, an environmental manager with the Bureau, wrote as follows in a letter to Timothy J. Perry, counsel for Ms. Pope, in a letter dated March 25, 2008: In Mr. Perry's letter dated March 17, 2008, he has advised Department staff that his client, Amanda Pope, would be amenable to remove the cantilevered seating area from her property. Pursuant to section 161.053(12)(c)(6), Florida Statutes,6/ the removal of any existing structures or debris from the upland, provided there is no excavation or disturbance to the existing topography or beach/dune vegetation is exempt from the Department's permitting requirements. The installation of the handrail would also be considered an exempt activity; however, be advised that if Ms. Pope proposes to install a wooden post into the ground, then the activity would no longer be exempt and a Department permit would be required. If, after removal of the cantilevered seating area and placement of the handrail, no additional compliance issues are identified by staff, the file on this matter will be closed. Since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. (emphasis added). In a follow-up letter dated June 19, 2008, noting that the bench seat had been removed and the Department's file on the matter had been closed, Mr. Martinello reiterated: As previously stated, since the subject dune walkover is within an easement, any future reconstruction or repairs to the subject dune walkover must be authorized with an administrative Coastal Construction Control Line permit. A Department field permit will not be available for any future proposed activities regarding the subject structure. With reason, Petitioners question why the Department's representative cautioned Ms. Pope that the installation of a single wooden post would trigger the need to obtain a permit from the Department, but three years later the Department determined that the installation of more than 30 posts on the same walkover was exempt from permitting. The letters clearly state that any future reconstruction or repairs to this dune walkover would require an administrative CCCL permit rather than a mere field permit. However, three years later, no permit whatever was required for an extensive renovation of the same walkover. At the hearing, Mr. Marintello testified that the intent of his language regarding the need for a permit was "informational." He wanted to advise the parties that they could not obtain a field permit for reconstruction because the walkover was within an easement. Mr. Martinello stated that the Department had previously decided that it would be better to use the administrative CCCL permitting process where an easement was involved. The greater scrutiny of that process would insure that the applicant is eligible to obtain the permit. Mr. Martinello stated that he defers to the opinion of Mr. McNeal and the Bureau permitting staff as to whether an activity qualifies for an exemption. He testified that he had no intent for his letter to preclude anyone from ever obtaining an exemption to perform work on the walkover, and that in any event he lacked the authority to make such a conclusive pronouncement. The Department and Applicants strenuously argued that any evidence not strictly addressing the criteria for exemption under section 161.053(11)(b) is irrelevant to this proceeding. In so arguing, they seek to avoid the threshold question of whether section 161.053(11)(b) is the applicable provision for repair or replacement of an existing structure such as a dune walkover. The testimony and the statute itself lead to the finding that the specific provisions of section 161.053(11)(a), not the general exemption language of section 161.053(11)(b), should have been applied to the "modification, maintenance, or repair" of this existing structure. When Mr. Morgan testified to justify the lack of need for various items listed in rule 62B-33.008(11), he did so in terms of section 161.053(11)(a): it was unnecessary to provide a ground survey, dimensioned site plan, dimensioned grading plan, or other site specific information or calculations because the project was staying within the confines of the existing structure. The Department's own personnel made it clear that their long practice has been to apply section 161.053(11)(a) to alterations of dune walkovers. Mr. Hatch testified that he has never issued an exemption for a dune walkover, and that his common practice is to issue field permits for dune walkovers. In his experience, aboveground repairs to walkovers are exempt and foundation modifications require a permit. Mr. Hatch was obviously referencing section 161.053(11)(a) in stating these criteria. Mr. Martinello's letters cautioning Ms. Pope not to install a wooden post in the ground were plainly premised on the section 161.053(11)(a) limitation on changes to the foundation. Mr. Martinello's testimony regarding his intent in writing the letters was an unconvincing attempt to revise his views to reflect the Department's new interpretation of the statute. The Department's own expert, the head of its CCCL permitting program, Mr. McNeal, conceded the novelty of granting a section 161.053(11)(b) exemption for a dune walkover. He could point to over one thousand walkover permits but not a single walkover exemption during his long tenure at the Bureau. In summary, the Department misapplied the general exemption criteria in section 161.053(11)(b) to a situation that met the more specific criteria of section 161.053(11)(a). Applicants should have been required to obtain either a permit pursuant to section 161.053(11)(a) or a Department determination that such a permit is not required because of the nature of the work performed on the walkover. Finally, Petitioners raised the issue of whether Applicants had the authority to obtain an exemption from the Department. Petitioners contended that neither Millken's Replat nor the Road Maintenance Agreement authorized Applicants to effect repairs on the walkover without express permission of the property owners, Ms. Pope and Anastasia, Inc. The Department argued that it has no obligation to investigate ownership rights prior to issuing an exemption. Based on the foregoing finding that the exemption was improvidently granted, there is no need to address this issue at this time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Daniel and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated May 1, 2005, for an exemption from the requirements of coastal construction control line ("CCCL") permitting pursuant to section 161.053(11)(b), Florida Statutes, for their proposed activities on a dune walkover structure seaward of the coastal construction control line at the end of Milliken Lane in St. Johns County. DONE AND ENTERED this 5th day of October, 2012, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2012.
Findings Of Fact The Applicant. Intervenor, Jacksonville District, United States Army Corps of Engineers (Corps), has applied to Respondents, Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund (the State), for consent to maintenance dredge the federal navigation channel between Gordon Pass and Naples, Florida, and deposit beach-quality sand dredged from the channel on and immediately seaward of beaches south of Gordon Pass on Keewaydin Island (the spoil area). In 1960, Congress enacted Public Law 86-645 authorizing the Corps to dredge and maintain a channel from the Gulf of Mexico through Gordon Pass to the City of Naples. The channel was first dredged by the Corps in 1962. Maintenance dredging was performed in 1967,-1970 and 1979/1980. The City of Naples has been and is the local sponsor of the project. The Corps is authorized to place beach-quality dredged sand material on beaches selected by the local sponsor but only if deemed appropriate by the Corps and if no more costly to the Corps than other appropriate alternatives. The spoil area begins about 500 feet south of Gordon Pass and extends approximately 4,000 feet to the south. Except for the spoil area, Keewaydin Island from Gordon Pass to approximately one mile to the south is privately owned and privately patrolled. However, the spoil area was deeded to the State of Florida by quit claim deed in 1979. The spoil area is therefore publicly owned property and legally is available for use by the public. The only restriction on the public ownership of the spoil area is that the State not permit any use of the spoil area "which may be injurious to the business, person or property" of Key Island, Inc., the Florida Corporation which transferred the spoil area to the State, and that Key Island, Inc., reserves "a perpetual easement over and [sic] such property to the waters of the Gulf of Mexico for its successors, assigns, tenants, guests, and licensees." Petitioners' Standing. Petitioners, John R. Donahue and Rhodora J. Donahue, husband and wife (the Donahues), own the land constituting approximately the western half of the Point of land immediately to the north of Gordon Pass, including approximately 500 feet of beachfront (the Point). The Donahues acquired this property for approximately 2.5 million dollars. The Donahues also own a beachfront residence and lot some distance to the north of the Point worth at least $500,000. To the north of Gordon Pass almost as far as Doctors Pass approximately 6 miles to the north, the sand along the beaches is transported in a net southerly direction. At least some of the sand the Corps plans to remove during its maintenance dredging of the channel at Gordon Pass and deposit in the spoil area came from the beaches to the north of Gordon Pass, including the beaches in front of the Donahues' properties. The net southerly drift of this sand has contributed to the erosion of the beaches adjoining the Donahues' property, as well as the properties themselves. Due to ebb tidal shoals west of Gordon Pass, increased in size by channelization and dredging of Gordon Pass, the net littoral transport immediately and approximately one mile to the south of Gordon Pass reverses to a northerly direction. The net northerly littoral transport of this reversal is at a lower rate than the net southerly littoral transport to the north of Gordon Pass. In addition, a rock jetty along the northern end of Keewaydin Island and extending several hundred feet west into-the Gulf, while not sand tight, slows the transport of sand north into Gordon Pass. Finally, sand that does drift north into Gordon Pass settles at the bottom of the channel and is not carried across the channel to the Point and land to the north, including the Donahues' properties. For these reasons, the Donahues are substantially affected by the maintenance dredging of Gordon Pass and placement of beach quality dredge material in the spoil area so as to have standing as parties Petitioners in this case. Littoral Transport System Near Gordon Pass. Littoral transport is a function of the direction and strength of waves, primarily wind-driven in the Gulf of Mexico in the area of Naples and at highest strength during storms, and the angle at which the waves strike the beach. The angle at which waves strike a beach is a function of the direction of the waves (itself a factor of both the direction of the wind driving the waves and the contour of the ocean bottom) and the direction along which the beach is oriented at the Point of impact. The time of day and season of the year with their impact on tides, also affect littoral transport. Because littoral transport is effected by so many factors, littoral transport changes in both direction and quantity from time to time and at various places along a beach. Average net littoral transport is the result of the combined effect of all these factors over a stretch of beach over a period of time. Although conceptually there is such a thing as average net littoral transport, different Points along the beach have different littoral transport qualities at different times. The presence of inlets or passes is one cause of this phenomenon. The type of inlet or pass - whether natural', or having one or more jetties and/or being dredged - also affects littoral transport in and around an inlet or pass. Both the Naples beaches to the north of Gordon Pass and Keewaydin Island to the south of Gordon Pass show the effects of Gordon Pass on littoral transport. The Point property immediately to the north of Gordon Pass generally has been receding over time in recent years. This is because the increasing tidal prism (or quantity of water having to be transferred in and out of Gordon Pass to fill increasing inland waterways) has been blocked to the south by a jetty along the northern end of Keewaydin Island. As a result, the Point has suffered erosion. In addition, as previously mentioned, sand transported south into the Gordon Pass channel cannot return to the beaches on the Point. Neither does sand from Keewaydin Island get transported across the channel to the Point. In addition, the beach at the Point angles to the southeast, more nearly parallel to the predominant direction of waves striking the beaches at that Point. Sand at the Point is therefore transported more quickly and in larger quantities to the south into Gordon Pass than is sand transported to the south at points further north along the Naples beaches. Finally, seawalls located immediately to the north of the Donahues' property on the Point exacerbate erosion on the Point beaches. The beaches immediately to the south of Gordon Pass, on the other hand, have accreted and are stable. Due to the jetty at the northern end of Keewaydin Island, the average net northerly littoral transport at that location - both of naturally occurring sand and sand placed in the spoil area in previous Corps maintenance dredging of Gordon Pass - have accreted to the northern Keewaydin Island beaches to the extent of the capacity of the jetty to contain the sand being transported. Once capacity is reached, the sand is transported around the jetty to the west into the Gordon Pass channel and through the pervious jetty into the Gordon Pass channel at various times depending upon weather and tide conditions. However, to the south, probably somewhat south of the southern end of the spoil area, the average net northerly littoral transport again reverses. Having escaped the reach of the effect of Gordon Pass, the littoral transport system returns to its average net southerly drift. In the area of this reversal. Point (the precise location of which, of course, varies from time to time), the beaches of Keewaydin Island are subject to rather severe erosion. The beaches in that area are eroded both to the north and to the south and are nourished from neither direction to significant degree. Further south on Keewaydin Island, the beaches are more stable. Near the southern tip of Keewaydin Island, at a natural inlet called Hurricane Pass, the beach is accreting and Keewaydin Island is expanding to the south. The Naples beaches to the north of the Point are generally stable. There has been some accretion near the Naples fishing pier at 12th Avenue South. However, there are some places along the Naples beach which are eroding. These areas include the area of the reversal Point south of Doctors Pass to the north, beaches in front of seawalls, and beaches immediately downdrift of the several groins along the Naples beaches. Public Use of The Beaches. The Naples beaches between approximately 7th Avenue North and 20th Avenue South are readily accessible to the public and are moderately to heavily used by the public, especially on weekends and during the four-month winter tourist season. Access to the Naples beaches south of 20th Avenue South is limited, with only three public access Points along that one to two mile stretch of beach. The property contiguous to the Naples beaches is privately owned. Essentially, as one continues south along the Naples beaches towards the Point, the beaches become less accessible to the public, and, as a practical matter, are used more by the owners of the substantial beachfront residences, their friends and guests. Like the property contiguous to the Naples beaches, Keewaydin Island is almost entirely privately owned. The only exception is the spoil area itself. In addition, like the Naples beaches, the beaches seaward of the mean high water line also are in the public domain. However, legal access to the public portions of Keewaydin Island is only by boat from the Gulf side. In addition, Key Island, Inc., through its representatives, has discouraged public use of even the public portions of Keewaydin Island by claiming that they are part of Key Island, Inc.'s property. As a result, the beaches of Keewaydin Island are virtually unused by the public. The only exception to this is the extreme southern spit of Keewaydin Island where the sand has been accreting and expanding the public beach. Access to the southern spit also is limited to boat, but it is accessible from all three sides of the spit, and the spit is used more by the public for recreational purposes than is the rest of Keewaydin Island. Development Along The Beaches. The Naples beaches are almost fully developed. From the Point north to approximately 4th Avenue North, development is primarily single family residences. From 4th Avenue North north to Doctor's Pass, development is mostly in the form of condominiums or other multi-family development. The residences in Olde Naples from approximately 5th Avenue South to the Point are relatively close to the beach, having previously been constructed seaward of the current coastal setback line. Likewise, several seawalls in the area, including in front of the condominium and other multi-family development to the north also are quite close to the beaches. On the other hand, Keewaydin Island is largely undeveloped. Besides the cluster of structures making up the Key Island Club on the northern tip of the island, there is no other development at all on the property owned by Key Island, Inc. In addition, there are only approximately 10 cottages on the part of the island south of the property owned by Key Island, Inc. Much of the island consists of mangroves and estuaries not suitable for development and not likely to be developed. In fact, Keewaydin Island is under consideration for purchase and preservation by the State under the Conservation and Recreation Lands Trust Fund Program. Need For Maintenance Dredging. Due to the littoral drift previously discussed, Gordon Pass and the channel to Naples needs to be dredged for navigation purposes every five to six years. The channel was last dredged in 1979 or 1980. The Corps usually maintenance dredges on a four-to-five year cycle, depending on weather conditions and other factors affecting littoral drift. While weather was relatively mild in the 1970's, weather in the early 1980's has been relatively severe. As a result, the channel now needs maintenance dredging along with the other maintenance dredge projects now taking place in southwest Florida. If the channel is not dredged now, it probably will be overdue for dredging by the time of the next maintenance dredging cycle in approximately 1990. Propriety Of The Spoil Area. At this time, the system of groins north of Gordon Pass are not adequate to contain or significantly slow the flow of sand to the south. The groins are in disrepair, and the terminal groin is approximately 200 feet or more shorter than it needs to be for this purpose. Sand pumped from the dredge north the same distance as sand is planned to be pumped south to the spoil area would make its way back into the Gordon Pass channel within two years. Several studies of the Naples beaches, beginning with a Corps study in 1972 through a "study to end all studies," as former City of Naples Mayor Rolland Anderson put it, by a blue ribbon committee appointed by the City of Naples, all recommended repair of the groin system and the extension of the terminal groin so as to enable the Corps to deposit dredged beach-quality sand material north of Gordon Pass. In 1982, the City of Naples finally took action to apply for State permits and funding of that project, among others, and to fund the City's portion of the cost of the project. However, the City withdrew its application in November 1982 and did not re-commit itself to the project until August 1985. The City now has applications for State funding and permits pending but funding and start of the project cannot be anticipated for another 1 to 2 years. Without an improved groin system and extension of the terminal groin, dredged sand would have to be spread on the Naples beaches to the north starting at least 6,000 feet to the north of Gordon Pass in order to prevent the sand from moving in the Gordon Pass channel within the Corps' normal maintenance dredging cycle. The City was advised as early as 1979 that this option for deposit of beach-quality dredged sand was only available if the city would fund the extra cost of pumping the sand that distance to the north, estimated at the time to be approximately $3-66,000, and would procure all necessary easements and permissions from affected private property owners. The City of Naples has never taken any of the steps necessary to effectuate this option. Given current circumstances, there is no viable alternative to the proposed spoil area. The Corps refuses to fund the extra cost of pumping dredged beach quality sand material an additional 6,000 feet to the north. Neither the City of Naples nor anyone else has agreed to fund the extra cost. Pumping sand an equal distance to the north (i.e., starting at 500' and spreading sand from there 4000' to the north) is inappropriate given the current condition of the groin system on the Point. (Such an option would maximize, not minimize, the need for maintenance dredging.) Given current circumstances, it is not contrary to the public interest to maintenance dredge the Gordon Pass channel to Naples and deposit beach-quality dredged sand in the proposed spoil area. The spoil area is primarily north of the reversal Point to the south of Gordon Pass in the littoral transport system in and around Gordon Pass. For that reason, a substantial portion of the sand deposited in the spoil area can be expected to eventually make its way back into the Gordon Pass channel in the future. The next time the Gordon Pass channel is maintenance dredged, this same sand can be redeposited elsewhere given the right circumstances. From a coastal engineering standpoint, beach quality sand dredged from the Gordon Pass channel should be returned to the place in the littoral transport system from which it came, i.e., some to the north and some to the south. As previously stated, sand cannot be redeposited to the north while minimizing the need for future maintenance dredging without either improving the groin system and extending the terminal groin on the Point or depositing the sand a substantial distance to the north of the Point. Redepositing the sand further to the north would have the additional benefit of maximizing recreational benefit to the largest portion of the public and helping to protect the valuable beachfront private property from storms. But the question whether to take the steps and provide the funding necessary to achieve these benefits is essentially a political question.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondents, Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, grant the application of Intervenor, Jacksonville District, United States Army Corps of Engineers, for consent to maintenance dredge the Gordon Pass to Naples channel and deposit beach-quality dredged sand in the proposed spoil area on Keewaydin Island. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee,Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. APPENDIX Rulings On Corps' Proposed Findings Of Fact. The substance of the following Corps' proposed findings of fact are accepted as substantially factually accurate and are incorporated in the findings of fact in the same or a modified form to the extent necessary: 1-3, 5, 7-10, 13, 14, 17, 19 and 21. The Corps' proposed findings of fact 18 would have been included in the paragraph immediately above except that it is unnecessary. The Corps' finding of fact 4 is rejected as argument. The Corps' proposed finding of fact 6 is rejected as argument and conclusion of law. The Corps' proposed finding of fact 11 is rejected as unnecessary. As to Corps' proposed finding of fact 12, the last sentence is rejected to the extent that it applies to the northern end of Keewaydin Island as being contrary to the greater weight of the evidence and/or the findings of fact. Otherwise, the substance of the proposed finding is accepted as substantially factually accurate, but subordinate and unnecessary. The Corps' proposed finding of fact 15 is rejected as argument, subordinate and unnecessary. The Corps' proposed finding of fact 16 would be included in paragraph 1 above except that the last two sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. The Corps' proposed finding of fact 20 would have been included in paragraph 1 above except that the third sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact. Ruling On State's Proposed Findings Of Fact. The substance of the following State's proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or a modified format to the extent necessary: 1-4, 10, 12, 13, 17, 21, 22. The substance of State's proposed findings of fact 5-9 are accepted as substantially factually accurate but are rejected as unnecessary. The substance of State's proposed findings of fact 14-16 are accepted as substantially factually accurate but are rejected as subordinate. State's proposed findings of fact 11, 18, 23, and 24 are rejected as argument. State's proposed findings of fact 19, 20, and 25 are rejected as contrary to the greater weight of the evidence and/or the findings of fact. State's proposed finding of fact 26 is accepted in part and rejected in part, specifically as to sub-paragraphs (b), (c) and (d). State's proposed finding of fact 27 is rejected in part as argument and in part as contrary to the greater weight of the evidence and/or the findings of fact. Rulings On Petitioners' Proposed Findings Of Fact. The substance of the following Petitioners' proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or modified format to the extent necessary: 1, 3-23, 28, 30, 43, 44, 60, 62, 64, 65, 67, 68, 72, 77, 78, 80. Petitioners' proposed finding of fact 2 would be included in paragraph 1 above, except that the evidence was the dredging itself will not cause or exacerbate erosion of Petitioners' property or the public beaches north of Gordon Pass. Petitioners' proposed finding of fact 25 would be included in paragraph 1 above except that the sand will not "soon move on to privately-owned and privately patrolled beaches," depending upon the definition of "soon." The sand will move to the north more slowly than sand north of Gordon Pass will move to the south. Only the sand at the extreme north of the State-owned spoil area will "soon" move on to the 500 foot strip of privately-owned beach between the State-owned property and Gordon Pass. Much of the rest of the sand will gradually move along the rest of the 4,000-foot strip of State-owned property and eventually reach the 500 feet of privately owned-beach. Ultimately, most of this sand will continue around or through the jetty on the northern end of Keewaydin Island and will settle in the Gordon Pass channel. A relatively small portion of the sand will spread to the south of the spoil area, primarily because of a scouring action, will reach the reversal point and will be carried south of the spoil area. Petitioners' proposed finding of fact 26 would be included in paragraph 1 above except that whether dredging sand is the cheapest way to nourish beaches depends upon the distance between the dredging operation and the beaches to be re-nourished. Petitioners' proposed finding of fact 29 would be included in paragraph 1 above with the clarification that "north of Gordon Pass" refers only to the Point. Petitioners' proposed finding of fact 45 would be included in paragraph 1 above except that the length of time in the last sentence are exaggerated and are erroneously assumes that none of the previously dredged sand ever makes it back into the Gordon Pass channel. Petitioners' proposed finding of fact 49 would be included in paragraph 1 above except that "holes large enough to swim through" appears to be an exaggeration or at least an isolated case based on the evidence. Petitioners' proposed finding of fact 61 would be included in paragraph 1 above with the clarification that the Corps' differing positions on placement of sand north of Gordon Pass varied in part depending upon assumptions as to the groin system, in part depending upon assumptions as to the net littoral drift and in part depending upon differences of opinion among members of the Corps. Petitioners' proposed finding of fact 70 would be included in paragraph 1 above with the clarification that the Corps' willingness to place sand on beaches north of Gordon Pass refers to starting sand placement between one-half mile and one mile north of Gordon Pass and spreading it one to two miles north from there. Petitioner's proposed finding of fact 74 would be included in paragraph 1 above with the clarification that DNR has, of course, participated in the Corps' application and in this proceeding. Petitioner's proposed finding of fact 29 would be included in paragraph 1 above except that the Corps is in the maintenance dredging business, not the beach re-nourishment business, and the Corps is legally obligated to place sand in the most economical appropriate spoil area unless sufficient funds are provided to cover the extra cost of more costly alternatives such as beach re-nourishment. The substance of the following Petitioners' proposed findings of fact are accepted as substantially factually accurate but are rejected as subordinate and unnecessary: 31-34, 37-42, 46, 47, 52, 55-57, 63, 66, 69, 71, 73 and 82. Petitioner's proposed finding of fact 35 would be included in paragraph 12 above except to the extent that the second sentence might infer that the wishes of a local sponsor override the Corps' legal obligation to deposit spoil material in the most economical appropriate place. Petitioners' proposed finding of fact 36 would be included in paragraph 12 above except that it is not particularly "noteworthy" in this case that there was no resolution in 1984/86. Petitioners' proposed finding of fact 58 would be included in paragraph 12 above except to the extent that the citations imply that the Corp did not seek the City's input and receive the City's input that the sand should be deposited south of Gordon Pass as it was previously. Petitioners' proposed finding of fact 24 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. As to Petitioners' proposed finding of fact 48, the first clause is accepted but the second clause alleging placement closer than 500 feet is rejected as contrary to the greater weight of the evidence an/or the findings of fact. Petitioners' proposed finding of fact 50 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. Petitioners' proposed finding of fact 51 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. 20. As to Petitioners' proposed finding of fact 53, the fourth, fifth, and sixth sentences are accepted, but the first and third sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. Two-foot overdredge for advance maintenance cannot be considered more than the minimum amount necessary to accomplish the Corps' purpose. There was evidence of shoaling and general filling of the channel. There was no evidence to suggest that certain parts of the channel, particularly the area of Gordon Pass, should not be deeper and wider than other parts of the channel between Gordon Pass and Naples. As to Petitioners' proposed finding of fact 54, the first sentence is accepted, but the second sentence is rejected as contrary to the greater weight of the evidence and the findings of fact. Petitioners' proposed finding of fact 59 is rejected as contrary to the greater-weight of the evidence and/or findings of fact. It is true that there are no survey markers. There is the potential for confusion as to the precise location of the State- owned property. Regarding movement of the sand onto private land up against the jetty, the findings of fact show that natural forces will eventually move the sand onto the private property and around and through the jetty back into Gordon Pass. The Corps is not responsible for, and the State should not consider, the possibility of theft of sand. Regarding Petitioners' proposed finding of fact 75, the second sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact, but the rest is accepted. Petitioners' proposed finding of fact 76 is rejected as contrary to the greater weight of the evidence and/or findings of fact. Petitioners' proposed finding of fact 81 is accepted in part and rejected in part. The proposed finding ignores factors such as the exact distance north the sand would be pumped, the cost of pumping sand that distance, and the condition of the groin system north of Gordon Pass. Regarding Petitioners' proposed finding of fact 83, the Corps' proposal does not "minimize future dredging at Gordon Pass" in the strictest sense, but the question in this case is not what else the Corps could do to minimize maintenance dredging besides the maintenance dredging itself, but rather is whether the maintenance dredging itself is to be conducted in a manner so as to minimize maintenance dredging in the future. Petitioner's proposed findings of fact 84 and 85 are rejected as contrary to the greater weight of the evidence and/or findings of fact. COPIES FURNISHED: Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building Tallahassee, Florida 32303 Jacob D. Yarn, Esquire David S. Dee, Esquire Martha Harrell Hall, Esq. P. 0. Box 190 Tallahassee, Florida 32301 Donald E. Hemke, Esquire P. 0. Box 3239 Tampa, Florida 33601 Spiro T. Kypreos, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building, Suite 1003 Tallahassee, Florida 32303 Harrison D. Ford, District Counsel Steven C. Calvarese, Assistant District Counsel Jacksonville District United States Army Corps of Engineers P. 0. Box 4970 Jacksonville, Florida 32232-0019 ================================================================= CORRECTED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES JOHN F. DONAHUE and RHODORA J. DONAHUE, husband and wife, Petitioners, vs. DOAH Case No.: 85 3829 STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES, and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Respondents. /
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
The Issue The issues for determination in this case are whether an unpermitted seawall and an unpermitted catwalk constructed by Respondents Frank and Patricia Baird qualify for exemption from permitting under Rule 62-312.050, Florida Administrative Code.
Findings Of Fact Petitioners, Stephen A. Spoeth, and Olive Faye McCall Spoeth, reside at 14038 Pine Street, Hudson, Pasco County, Florida. Mrs. Spoeth purchased the property in 1989 prior to Petitioners' marriage and has lived at this residence since that time. Mr. Spoeth has resided at the property since 1991. Petitioners' residence is located on lot 14 in the subdivision plat. In addition to their residence (lot 14), Petitioners own another lot, (lot 10), directly across Pine Street from their residence. Lot 10 borders the end of a canal. Petitioners have constructed a 10.6 foot by 11.8 foot dock that extends approximately 16.5 feet into the canal from Lot 10. Petitioners also own property adjacent to lot 10 on the south side of the canal. Respondent, Patricia Baird, resides at 6732 Udell Lane, Hudson, Pasco County, Florida. Respondent and her husband, Frank Baird, purchased this property in 1991. Frank Baird is now deceased. Respondent owns lots 8 and 9 as identified in the subdivision plat. Respondent's residence is located on lot 8. Both lots 8 and 9 border the north side of the canal. Lot 8 has 75 feet of waterfront, and lot 9 has 70 feet of waterfront. Lot 9 abuts Petitioners' lot 10 at the end of the canal. The canal in question is a dead-end canal located in a residential community in Pasco County. The canal was artificially created on historically upland property. The canal runs east to west, is rectangular in shape, and is approximately 70 feet wide, as measured from north to south. The canal accesses into Hudson Creek which then accesses into the Gulf of Mexico. The water in the middle of the canal is generally five feet in depth; however, the depth of the water in the canal varies with tidal fluctuations. During low tides, the water over two feet in depth is shared equally between both sides of the canal channel. At normal tide flow, water at the three-foot depth level is also shared equally between both sides of the canal. Water at the five-foot depth level is slightly closer to the north part of the canal channel next to the Baird's property. Since 1991, the Bairds have constructed four structures on their property: a seawall; a fixed dock; a floating dock; and a catwalk. The seawall runs the length of the waterfront on both lots 8 and 9. A six-foot portion of the seawall was constructed on Petitioners' property (lot 10), and was subsequently removed as a result of a prior proceeding between these parties. The Baird seawall is level and flush with the adjoining seawall constructed on waterfront lot 7 that is owned by Mary-Jane Prack. The Baird seawall was constructed in accordance with generally acceptable building practices. On lot 8 the Bairds constructed a 20 foot by 16 foot fixed dock adjacent to the seawall. The fixed dock was constructed in accordance with generally accepted building practices. On lot 9 the Bairds placed an 8 foot by 12 foot floating dock with an 11.7 foot catwalk. This structure extends approximately 19.7 feet into the canal. The floating dock was constructed in accordance with generally accepted building practices. In 1993 the Bairds added a 30 foot by 18 foot by 30 foot L-shaped catwalk adjacent to the existing dock on lot 9. The catwalk was constructed in accordance with generally accepted building practices. Petitioners have one boat tied to their dock on lot 10. The Petitioners also keep a paddle boat and a canoe at that location. Prior to the construction of the Baird's catwalk, Petitioners tied their boat with the bow pointing north. This allowed the Petitioners to access water which was generally three feet in depth. Subsequent to the construction of the catwalk, Petitioners tie their boat with the bow to the south. The water in this part of the canal is shallower than on the north side, and on some occasions when the tide is extremely low, the bow of Petitioners' boat rests in mud. Such extreme low tides usually occur in the spring of the year, and generally happen seven days a year. On such occasions Petitioners experience great difficulty moving their boat into the canal. During such low tides Petitioners also have difficulty launching their paddle boat and canoe. The evidence is consistent that private boats navigate the canal. Moreover, Mary-Jane Prack testified that not only private vessels, but also commercial fishing vessels, currently use the canal on a regular basis during the day and the night. Thus, there is no question that the seawall and catwalk do not impede navigation of the canal. Water quality in the canal was not tested prior to the construction of the seawall and catwalk on the Baird's property, and there is no basis to evaluate the impact of the construction of the Baird's seawall and catwalk on water quality; however, except for the initial period of construction, the building of a seawall, fixed dock, floating dock, and catwalk in accordance with generally accepted building practices does not have an adverse effect on water quality in a residential tidal canal. The Baird seawall is level with the surrounding property and does not adversely affect runoff or flood control. The Baird catwalk is constructed to allow water flow and does not adversely affect runoff or flood control. On September 22, 1994, DEP issued a letter determining that the Baird unpermitted seawall and unpermitted catwalk met the exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. The DEP decision in this regard reversed a prior warning letter issued by DEP on December 16, 1993, to the Bairds stating that the unpermitted seawall and unpermitted catwalk were in violation of the DEP rules. The warning letter was issued by DEP under the mistaken apprehension that the canal had been constructed on sovereign state submerged land, when in fact the canal was artificially constructed on historically uplands property.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection issue a Final Order upholding the Department's determination that the unpermitted seawall and unpermitted catwalk located at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of June, 1995. RICHARD HIXSON 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 13th day of June, 1995. APPENDIX Petitioner's Proposed Findings: Rejected except to the extent that the bow of Petitioners' boat at extreme low tides sits in the mud. Rejected Rejected Rejected Rejected as irrevelant Rejected as irrelevant Rejected Rejected Respondent Bairds' Proposed Findings: 1 - 7. Adopted and incorporated Respondent DEP's Proposed Findings: 1 - 38. Adopted and incorporated COPIES FURNISHED: Virginia B. Wetherell, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen A. Spoeth and Olive McCall Spoeth 14038 Pine Street Hudson, Florida 34667 Edson L. Garrabrants, Jr., Esquire 6008 Main Street New Port Richey, Florida 34653 Christine C. Stretesky, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By application dated March 9, 1981, and received by the DNR's Bureau of Beaches and Shores on March 13, 1981, respondent sought a permit to construct five single-family dwellings on five 64-foot-wide parcels of land located seaward of the established coastal construction control line (CCCL) on Grayton Beach. Attached to the application were site plans, an affidavit of ownership and a warranty deed showing respondent Roberts to be the owner of the subject property. (DNR Exhibit 1) Question number 5 on the permit application required the "specific reasons the applicant feels that the permit should be approved and why construction seaward of the control line . . . is considered necessary for reasonable use of the property." The answer provided by the applicant to this question was "the landward property line is located 150 feet seaward of the control line. Therefore, no upland property is available on the site for development." (DNR Exhibit 1) By form letter dated March 16, 1981, DNR notified respondent Roberts that his application for a permit was incomplete and that two further items of information were necessary before his application could be considered. One item was written evidence that the proposed project would not contravene local setback requirements or zoning or building codes. The other item was detailed site, grading, drainage and structural plans and specifications for the proposed structure. These plans were to be certified by a registered Florida engineer or architect. (DNR Exhibit 2) On or about March 31, 1981, the DNR received the certified architectural plans from the project architect, who is registered in the State of Florida. These plans, as well as the site plans submitted by the engineer, contained the signature and seal of the architect and the engineer. They each intended their signature and seal to constitute a certification that, in their opinion, the drawings or plans were in compliance with all statutes, rules, local ordinances and/or other regulations which govern the project. A certification of documents by the placement of signature and seal of an engineer or architect is the commonly accepted practice and usage in those professions. It is not the policy of DNR to require an itemized certification reciting every requirement of the DNR rules. By form letter dated April 6, 1981, the DNR notified the applicant that written evidence of compliance with local government regulations was still lacking. (DNR Exhibit 4) On April 13, 1981, DNR received a letter dated April 9, 1981 from the Walton County Attorney advising that "The Board of County Commissioners of Walton County has no local setback requirements or zoning or building requirements which would prohibit the proposed activity as submitted to the Bureau." (DNR Exhibit 5) This letter satisfied the requirement of Rule 16B-33.08(1)(c), Florida Administrative Code, that the proposed project would not contravene local setback requirements or zoning or building codes. Full scale copies of topographic and site plans were received by the Bureau of Beaches and Shores on April 15, 1981. The application for a permit was deemed complete as of April 15, 1981, (DNR Exhibit 7), and respondent Roberts' agent was notified by letter dated June 23, 1981 that the DNR Executive Director had recommended to the Governor and Cabinet (the agency head of the DNR) approval of the application. (DNR Exhibit 10) The completed application reflects that the five single-family dwellings are to be supported by treated timber pilings with an underside minimum elevation of +14 feet (NGVD). The Federal Base Flooding Elevation for Grayton Beach is +9 feet (NGVD). The architect has certified that the proposed dwelling units are designed to withstand 140 mile per hour winds. The seaward- most dwelling of the five is a maximum of 263 feet seaward of the coastal construction control line, and the applicant's entire parcel of land is located over 150 feet seaward of the control line. The project is located approximately 230 feet from the mean high water line. The project also includes the construction of a private road, septic tanks and drainfields. The dune system in front of the proposed structure will offer substantial protection to the structure against storm and wave action. The excavation proposed includes that necessary for the placement of the pilings, the septic tanks and the drainfields, and the construction of the proposed driveway. The proposed drainfields will extend partially above existing grade and fill material i11 be placed over them. The driveway consists of a 16-foot asphalt paved road located landward of the proposed dwellings. The dunes will be reduced in height where the driveway is to be constructed. It is not clear from the testimony or the documentary evidence adduced at the hearing where the parking of vehicles belonging to residents or guests of the five units is to occur. While there was testimony from Mr. Truitt to the effect that no net loss of sand will occur and that the project will involve more of a balancing of grade as opposed to excavation, the engineering plans submitted with the application illustrate at least nine rather large areas of cut and fill associated with the driveway, septic tanks and drainfields. The project engineer had considered no studies on the topography or littoral trends of this specific site, had no knowledge of engineering data regarding adjacent properties and had not reviewed any data regarding major storms on the subject project site. The engineering plans submitted as a part of the application contain a diagram illustrating five separate 750 gallon septic tank systems, one for each dwelling unit, with the "drainfield [for each unit] to be constructed in accordance with Chapter 10D-6, F.A.C." (DNR Exhibit 1) The larger scale engineer's drawing submitted to DNR on April 15, 1981, gives more specific information regarding the location and depth of the below grade drainfields on the seaward side of the structures. A DNR interoffice memorandum dated June 1, 1981, reflects that the applicant's agent agreed in a telephone conversation that, "if possible, he would move the septic tank (750 gal) and related drainfields to the landward side of the buildings." (Joint Exhibit 1) The Cabinet agenda item dated later in time, however, notes that the "septic tanks (750 gallon) and drainfields will extend an additional 50 feet seaward of each dwelling." (DNR Exhibit 8) The exact proposed location of the septic tanks and drainfields was not clarified at the final hearing, nor was sufficient evidence adduced concerning the justification for the proposed discharge system. Evidence concerning the availability of any existing alternatives to the system proposed by the applicant was not adduced, nor was evidence presented concerning storm water discharge. As of the time of the hearing in this matter, the applicant had no plans for heating or cooling the five dwelling units. When asked at the hearing what "justification" the Bureau of Beaches and Shores received for the proposed waste water discharge system, Mr. Clifford Truitt, the Bureau's chief engineer and the person responsible for review of this application, replied in two ways. First, he stated that the fact that the property was located entirely seaward of the CCCL was justification for the discharge system. However, he admitted that a "dry sanitary system" would be a better alternative. Later, Mr. Truitt stated that "justification" for the domestic waste system is only required when there is a beach level discharge. Mr. Truitt was accepted as an expert witness in the area of coastal engineering. His opinions regarding the proposed project were based upon his review of aerial photography of the Grayton Beach area and comparison of topographic profiles of the area, his review of the engineering and topographic information submitted with the application itself and his familiarity with the project location. No evidence was adduced that engineering data concerning storm tides related to shoreline topography was considered by Mr. Truitt or anyone else. No specific studies exist regarding the stability, littoral trends or the erosional history of the proposed site and surrounding area. The project site has been the subject of other permit applications considered by the DNR, and Mr. Truitt was of the opinion that a mitigating feature of the present application was that "the present proposal has the lowest density and least extension seaward of the control line of any proposal to date." (DNR Exhibit 8) It was Mr. Truitt's opinion that the dwelling unit structures were adequately elevated and designed to adequately resist the natural forces associated with a 100-year return interval storm event and would not increase the threat of damage or danger to nearby structures. Factual evidence concerning the 100-year storm event was not presented at the hearing. Mr. Truitt further opined, without the aid of engineering data or the studies mentioned above, that the proposed construction would not affect the natural shoreline fluctuations or the stability of the dunes in the area. Such an opinion contains no factual basis in the record of this proceeding, and thus is not sufficient evidence upon which to make a similar finding of fact. On various sporadic occasions, a waterway or pass connecting Western Lake to the Gulf of Mexico runs in a westerly direction in the vicinity of the applicant's property. At times, this watercourse has been wide and deep enough to allow swimming, diving and the passage of small boats. The witnesses who testified about this watercourse were not qualified as surveyors or experts in estimating or calculating the exact location of that watercourse relative to the proposed site, and there was no testimony that such an event had occurred within the past twenty years. At least two witnesses testified that the last time they could recall the watercourse or pass traversing or abutting the applicant's property was in the late 1950s. The proposed project site has been covered with storm waters on at least two occasions in the past seven years. No evidence was adduced at the hearing concerning the substantial interests in this permit application of named petitioners Colonel G. A. P. Haynes, Mr. and Mrs. Roy Cawthon, Mrs. Kate Florence, Mrs. Burton Murray, Colonel and Mrs. Lee Fry, Mrs. Laney Ellis and Mrs. Randall Jones. Mrs. G. A. P. Haynes, one of the petitioners in this proceeding, owns and resides on property immediately adjacent to the project site, and presently entertains an unbroken view of the beachfront. She is concerned with potential sewage problems and damage to her residence from flying debris caused by wind or storm should the proposed construction be approved. Mrs. Haynes was also concerned about the potential adverse effect of the proposed construction on the value of her adjacent property. Petitioner Burton Murray lives to the north of the project site, at least several hundred feet away. His prime concern was that no structure could survive at that location and that the project would therefore be a waste of money. Petitioner Elizabeth Hayes Jones (named as Ms. Lisbeth Haas in the petition) lives across the street and to the east of the project site. Her residence was completely destroyed by hurricane and has since been rebuilt at the same site. She feels that the applicant's project site is not safe for construction, and fears storm damage to her home from the buildings if constructed.
Recommendation Based upon the findings of fact and conclusions of law recited herein it is RECOMMENDED that the application for a coastal construction control line permit to construct five single-family dwellings on Grayton Beach be DENIED. Respectfully submitted and entered this 25th day of May, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982. COPIES FURNISHED: Jerry W. Gerde, Esquire Davenport, Johnston, Harris, Gerde & Harrison, P. A. 406 Magnolia Avenue Panama City, Florida 32401 W. Paul Thompson, Esquire Thompson and Adkinson P. O. Drawer 608 DeFuniak Springs, Florida 32433 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32303 Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
