The Issue Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005.
The Issue This case concerns the issue of whether the Respondents, B. W. and Mildred Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6. Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained. DONE AND ORDERED this day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS 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 27th day of April 1984. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576 James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598
The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
The Issue The issue in this case is whether Petitioner is liable for retirement contributions on compensation paid Thaddeus Kmiecik in his capacity as city dockmaster.
Findings Of Fact The City of Moore Haven is located west of Lake Okeechobee alongside a waterway that connects Stuart on the east coast with Ft. Myers on the west coast. Petitioner maintains docks that boaters may use overnight, provided they pay a docking fee. A dockmaster supervises the dock and collects the docking fee from boaters. Petitioner's first dockmaster served without compensation. Whenever he became ill or went out of town, he asked Petitioner to hire someone to replace him. Pursuant to Ordinance No. 156, which went into effect in 1982, Petitioner hired replacements for the first dockmaster. Ordinance No. 156 provides that specified docking fees shall be paid by all boats docking at the city docks between the hours of 6:00 pm and 8:00 am or at other times, if the boat remains docked over three hours. However, the ordinance allows the dockmaster to enter into special contracts with commercial users, subject to the approval of City Commission. Ordinance No. 156 states that the City Commission shall appoint one or more persons as dockmaster, who shall "check all boats at the City dock both evening and morning of each day." The ordinance requires the dockmaster to record all relevant information about the boat in a log. The ordinance states that the dockmaster is "responsible seven days a week for the collection of dockage fees, giv[ing] a receipt from a numbered book, and giv[ing] copies of all receipts to the City Clerk each working day." The dockmaster must also tell the City Clerk if the docks need repairs or maintenance. The dockmaster is also required to assume at least certain responsibilities of the City Manager if the position is vacant. The health of the original dockmaster deteriorated and it became necessary to hire someone else to collect the fees. By agreement between the original dockmaster and the person doing the collections, the dockmaster allowed the collector to retain a percentage of the docking fees collected. The remainder evidently was remitted to Petitioner. When the original dockmaster died, Petitioner hired Thaddeus Kmiecik as the new dockmaster. The agreement between Petitioner and Mr. Kmiecik requires that he answer directly to the City Commission. He is to ensure that the docking fees are collected and all money taken directly to City Hall. Boaters needing reservations call Mr. Kmiecik at home. Mr. Kmiecik is responsible for his own expenses, but he earns a commission, payable monthly, of 20 percent of the collected docking fees. From 1986 through 1993, Petitioner has filed IRS Forms 1099, showing that Mr. Kmiecik has received the following "nonemployee compensation": 1986--$1936.52; 1987-- $2324.83; 1988 1992--$3457.50; and 1993--$2621.08. The arrangement between Petitioner and Mr. Kmiecik is fairly loose. He has never received any training, except how to complete the receipt book, which is provided by Petitioner. He has never received any orders as to how to perform his job, except that he is to ensure that the docks are checked nightly for boats and that all docking fees are promptly remitted to Petitioner. Mr. Kmiecik does not check the docks in the morning, and the City Commission has never insisted that he do so, even though the ordinance so requires. Mr. Kmiecik has attended only one City Commission meeting and has never reported anything to the City Commission. He can hire anyone whom he chooses to help him or perform the services when he is out of town or otherwise unavailable. He may supplement his income from the docks by performing other services, such as taking boaters to the airport, and he retains all compensation for such additional services. Although not required to do so, Mr. Kmiecik sometimes wears a city uniform when he appears at the docks. But this is the uniform for his fulltime job at Petitioner's water plant. Other persons checking the boats at night do not have a uniform. Petitioner is a participating local agency in the State-Administered Retirement System. Petitioner makes retirement contributions on Mr. Kmiecik's pay for his work at the water plant in recognition of the fact that this position is a regularly established position under the State-Administered Retirement System. However, Petitioner has always treated Mr. Kmiecik as an independent contractor for his work as dockmaster and has thus made no retirement contributions for his dockmaster compensation. The record is silent as to when Mr. Kmiecik first became employed with Petitioner in the water plant and whether he has been continuously so employed. On June 3, 1993, Petitioner answered a questionnaire acknowledging that Mr. Kmiecik worked at the city water plant also. Based on the record, June 3, 1993, is the earliest date on which Mr. Kmiecik worked at the city water plant. By letter dated January 21, 1994, Respondent informed Petitioner that Mr. Kmiecik was an employee when performing dockmaster services and demanded retroactive retirement contributions from the unspecified date of his employment in that position. By letter dated January 25, 1994, Petitioner supplied additional information and requested further review of this decision. By letter dated March 7, 1994, Respondent advised Petitioner that Respondent had determined that Mr. Kmiecik was performing the services of dockmaster in an employer-employee relationship, rather than an independent contractor relationship. The letter adds that Mr. Kmiecik is filling a "regularly established position" as an operator of the water plant and is "performing additional duties" as the dockmaster. Petitioner requested a formal hearing on the issue. Based on the relevant law, Mr. Kmiecik is an independent contractor with respect to his dockmaster services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter a final order requiring the City of Moore Haven to pay retirement contributions with respect to the compensation paid Mr. Kmiecik for services as a dockmaster, retroactive to June 3, 1993. ENTERED on July 21, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 21, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1: adopted or adopted in substance. 2-3: rejected as subordinate. 4-10: adopted or adopted in substance. 11: adopted or adopted in substance, but only to the minimal extent of the use of the receipt books. 12-18: adopted or adopted in substance. COPIES FURNISHED Steven A. Ramunni Watkins & Ramunni, P.A. P.O. Box 250 LaBelle, FL 33935 Jodi B. Jennings Assistant Division Attorney Division of Retirement Cedars Executive Center, Bldg C 2639 North Monroe St. Tallahassee, FL 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560
Findings Of Fact Sea Isles Condominium Association (Petitioner) is the riparian owner of lands at 25714 Hickory Boulevard, Bonita Springs, Florida 33923. The Petitioner's lands lie along the Broadway Channel connecting the Gulf of Mexico to Estero Bay. There are 84 upland units in the condominium. Some condominium residents without docking slips have requested that the Petitioner apply for expansion of the existing facility. The waters adjacent to Petitioner's upland property are located within the Estero Bay Aquatic Preserve (pursuant to Section 258.39(28), Florida Statutes) and are designated as Outstanding Florida Waters (OFW) by the Department of Environmental Regulation (DER). At some point in approximately 1982, the condominium developer sought approval for the construction of docking facilities. By letter of January 25, 1982, Richard P. Ludington, then Director of the Division of State Lands of the Department of Natural Resources (DNR), indicated that there was no objection to the proposed dock project. The parties to this case have jointly stipulated that the Ludington opinion was based on the fact that the proposed project was a private non-income producing facility (a lease therefore not being required) and was not in conflict with any existing rules. The DER issued permit number 36-42521-5E, dated February 9, 1982, and the U.S. Army Corps of Engineers issued general permit number SAJ-33, both approving and authorizing the construction of the docking facility. Although the water body had been designated as an aquatic preserve, there were no adopted administrative rules regulating such projects at the time of the initial dock construction. The approved sixteen slip docking facility was constructed along the margin of the shoreline in 1983 by the developer of the condominium. Due to extremely shallow water depths, only two of the slips were accessible. At some point thereafter, the Petitioner began efforts to remedy the unusable slip situation. Initially, the Petitioner desired to dredge the area, but was unable to secure approval to dredge from regulatory agencies. The Petitioner then began to consider additional solutions. The solution upon which the Petitioner decided was removal of the existing slips and construction of an extended boardwalk and dock located in navigable water. On March 28, 1985, the DNR notified the Petitioner that the project would require approval in the form of a submerged land lease from the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Board"). On August 20, 1985, the DER issued permit number 361011295, authorizing the removal of the existing structure and the construction of a 22 slip docking facility as proposed by the Petitioner. On behalf of the Board, the DNR reviews applications for leases of sovereignty submerged lands. In reviewing such requests, the DNR calculates the maximum amount of sovereignty submerged lands which may be preempted by a proposed facility. According to administrative rule, the area of sovereignty submerged land preempted by a private residential multi-slip docking facility may not exceed the total square footage equal to ten times the riparian waterfront footage of the affected waterbody. DNR's calculation of the affected shoreline indicated that the Petitioner's riparian waterfront measured 433 feet. Application of the 10:1 ratio would indicate that the area of sovereignty submerged land preempted by the proposed multi-slip docking facility could not exceed 4330 square feet. As early as 1986, a surveyor employed by the Petitioner believed the DNR shoreline calculation to be erroneous and determined the Petitioner's riparian shoreline to be 601 feet. After discussing the discrepancy between measurements, the DNR representative informed a representative of the Petitioner that Sea Isles could obtain a mean high waterline survey to determine the actual shoreline footage if it disagreed with the DNR calculation. Although there is testimony that a survey provided to the DNR established the mean high waterline, the greater weight of the evidence establishes that the survey was not identified as a mean high waterline survey, but as a safe upland line survey. No credible mean high waterline survey was provided to the DNR by the Petitioner at that time. Abutting the Petitioner's property to the south is a man-made channel which results in an unnatural extension of the shoreline. Such extensions are not included in computing the allowable square footage of sovereign submerged lands because the man-made shoreline does not abut sovereign submerged lands. It is unclear whether the calculations of shoreline were affected by this consideration. Despite the discrepancy, the Petitioner reduced the size of the requested docking facility to include a boardwalk and dock of ten slips totalling approximately 4300 square feet and extending 208 feet into the waterbody (approximately 35 percent of the waterbody's width). The length of the extension violates administrative rule provisions governing extension into a waterbody which are addressed elsewhere herein. On July 23, 1986, Lee County passed a resolution of approval for the proposed docking facility land lease and granted a variance to Lee County Ordinance 85-25. The resolution of approval contained additional requirements, included a provision restricting the approval to not more than ten slips. The Petitioner asserts that the determination of shoreline was incorrect and was the result of "mutual mistake". The evidence fails to establish that the Petitioner's acceptance of the DNR's shoreline determination was based upon "mutual mistake." The evidence establishes that the Petitioner's representatives were aware of the discrepancy. The fact that the Petitioner agreed to deed a 575 foot conservation easement to the Board (to offset the potential adverse impact on manatee habitat as discussed elsewhere herein) would suggest that the parties were aware that the 433 foot measurement was inaccurate. For whatever reason, the Petitioner agreed to the DNR shoreline and dock calculation which formed the basis for the lease approved by the Board. Prior to approval of the lease, the Board reviewed a written "public interest" assessment which indicates that the length of the boardwalk to the proposed docking facility exceeded standards set by administrative rules. Pursuant to rule, exceptions to length restrictions may be made only where the applicant demonstrates that such exception is necessary to insure reasonable riparian ingress and egress. The Petitioner apparently demonstrated that, given the location of the existing sand flat, such exception was necessary to provide ingress and egress. According to the written analysis, the proposed project adversely impacted the manatee habitat located in the aquatic preserve. The analysis states that 575 foot conservation easement to the Board would offset the potential adverse impact on manatee habitat. The Petitioner committed to the conservation easement in order to meet the public interest test required of all docking facilities within an aquatic preserve. Special lease condition paragraph 5 requires the Petitioner to record a conservation easement for approximately 575 linear feet of shoreline in perpetuity to run with the land. The provision requires that documentation of the recording of the easement be provided to the Board within thirty days of the Board action and prior to execution of the lease. The lease conditions clearly indicate that the Petitioner will not seek authority to expand the docking facility. Special lease condition paragraph 5 prohibits any additional docking facilities or any other such development along the lessee's shoreline. Review of proposed special lease condition paragraph 6 (as compared to the staff recommendation and a subsequent affidavit executed by the Petitioner's representative on June 6, 1987) indicates that the paragraph appears to contain a typographical error in deleting the word "not" from the condition. The greater weight of the evidence establishes that the Petitioner agreed not to request authorization to dredge the docking area or channel or to request additional expansion of the facility. On April 21, 1987, the Board, apparently acting against the staff recommendation, voted to grant to the Petitioner a submerged land lease for the construction of a ten slip facility. Representatives of the Petitioner appeared before the Board during consideration and approval of the lease. On June 6, 1987, a representative of the Petitioner executed an affidavit on behalf of the Petitioner which sets forth the language of special condition paragraph six as originally proposed. In the affidavit, the Petitioner's representative agrees not to apply for authorization to dredge the dock or access channel, or to request expansion of the facility. A deed of conservation easement dated October 21, 1985, and signed by a representative of the Petitioner, was attached to the materials submitted to the Board for the April 21, 1987 meeting. Contrary to the lease requirement, the attached deed of conservation easement was never recorded. In 1986 or 1987, a conservation easement was recorded by the Petitioner in favor of the Board, but the easement contained no legal description of the subject property. However, the recorded easement does prohibit additional docking facilities and waives the Petitioner's rights of ingress or egress related to any such additional facilities. In early 1991, the Petitioner requested approval to expand the existing dock from 10 to 14 slip. The expanded structure would preempt 5620 square feet of sovereign submerged land. On May 15, 1991, the DER granted approval of the four slip expansion. On November 27, 1991, the DNR, by letter signed by Michael E. Ashley, Chief of the Bureau of Submerged Lands and Preserves, denied the requested four slip expansion. The letter was prepared at the direction and with the approval of the Director of the Division of State Lands. Mr. Ashley cites two reasons for the denial. First, the request violated the terms of the existing lease which provides that there will be no expansion requested. Second, the Petitioner had failed to record the 575 foot conservation easement which was required by the terms of the original lease. The request for extension was not presented to the Governor and Cabinet for consideration, but was reviewed by the "agenda review committee" of the DNR. The committee includes the Deputy Director, two Deputy Assistant Executive Directors, the General Counsel, and the Cabinet Coordinator for the DNR. The committee reviews matters which are identified as potentially requiring Board action to resolve. Where issues exist related to existing sovereignty submerged land leases, the DNR attempts to resolve the matter without referral to the Board. The authority to conduct business in this manner has not been reduced to writing, but is based on verbal direction from the Board and from Cabinet assistants. Subsequent to the letter of denial issued by Mr. Ashley, the Petitioner on or about December 30, 1991, filed a conservation easement granting to the Board, a perpetual interest in a parcel of land lying ten feet landward of the Safe Upland Line as described in the deed recorded in the records of Lee County, Florida, (OR 2268, Page 0401) with the Clerk of Court for Lee County. The parcel of land identified in the deed runs along the shoreline for a distance of 601 feet. The easement provides for modification by the signed agreement of the parties. Because the Petitioner seeks to expand an existing lease, it is required to demonstrate an additional public benefit would result from approval of the request. The Petitioner has proposed to plant an area of mangroves in the shallow "sand bar" area located behind the existing slips. There is no additional public benefit related to the request. The evidence fails to establish that granting the request to expand the docking facility is in the public interest.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a Final Order denying the request of Sea Isles Condominium Association to modify the existing sovereignty submerged land lease to provide for four additional boat slips to their existing ten slip docking facility. DONE and RECOMMENDED this 15th day of April, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 15th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1077 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, not supported by the greater weight of credible and persuasive evidence. 19. Rejected as to comments by Miller, irrelevant. 20-21. Rejected, irrelevant. Rejected as to 6,010 square feet of permissible preemption. Based upon shoreline calculation which is not supported by the greater weight of credible and persuasive evidence. Rejected, irrelevant. The manatee information was required under the conditions of the existing lease, and do not constitute a benefit to be considered in addressing the request to modify the lease. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, unnecessary. COPIES FURNISHED: The Board of Trustees of the Internal Improvement Trust Fund c/o Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Robert Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 L. Kathryn Funchess, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #35 Tallahassee, Florida 32399-3000
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact On or about April 30, 1993, a man identifying himself as "Mr. Sapp," entered into a contract with Richard Leslie Hennig, 2184 Harbor View Drive, Dunedin, Florida, for repairs to a dock located at Hennig's home. "Mr. Sapp" was a sales representative for building contractor John S. Davis II. The contract admitted into evidence at the hearing states that it is "subject to office approval." There is no credible evidence that the Respondent saw or approved the contract entered into evidence at hearing. There is no credible evidence that "Mr. Sapp" disclosed the extent of the agreement to the Respondent. It is the Respondent's standard business practice to sign a sales contract when it is approved. The contract admitted into evidence was not signed by the Respondent. The signature on the contract indicates that the contract was signed by "John Sapp." There is no evidence that "Mr. Sapp" was authorized to execute formal contracts on behalf of or to otherwise bind the Respondent without the final approval of the Respondent. Count One of the Administrative Complaint alleges that the Respondent contracted with Hennig to rebuild the boat dock for a total of $2,800 and that a deposit of $1,400 was paid at the time the contract was written. There is no credible evidence that the Respondent was involved in the agreement between Hennig and the alleged "Mr. Sapp." There is no evidence that the $1,400 deposit was forwarded to or received by the Respondent. Count One further alleges that the dock construction fails to meet applicable building codes and constitutes gross negligence, incompetence or misconduct in the practice of contracting. The evidence establishes that the pilings used in the project are undersized or missing and that lumber used in the project fails to meet the required dimensions for compliance with the codes. There is no credible evidence that the Respondent participated in the project or was responsible for the quality or sufficiency of materials used therein. Count Two of the complaint alleges that the Respondent did not obtain proper permits for the work. The evidence establishes that the permits obtained for this project were inappropriate and did not permit the extent of construction required to provide the dock sought by Hennig. There is no credible evidence that the Respondent participated in planning the project. There is no evidence that the Respondent bore any responsibility for the permits or lack thereof. The Respondent testified that "Mr. Sapp" entered into a number of "side deals" of which the Respondent was unaware. There is no evidence contrary to the Respondent's testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County Construction Licensing Board enter a Final Order dismissing the Administrative Complaint filed against John S. Davis, II. DONE and RECOMMENDED this 27th day of September, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 27th day of September, 1994. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643, 5116 John S. Davis, II 6727 126th Avenue North Largo, Florida 34643
Findings Of Fact Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property") The Property has a shore length of 68.5 feet on Crescent Lake. Crescent Lake is a "water of the state" as defined in Section 403.031, F.S. The agency, now DEP, is the state agency charged with environmental concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake. Mr. Carter's westerly neighbor also has a shorter dock going into the lake. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value. The Hagemans initially filed a complaint with the DEP in regard to the dock. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes. The consent order provides, in pertinent part, that Mr. Carter will (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about 100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state". A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C. 3/ Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows: 2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof * * * 5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent. * * * 12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights. DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
The Issue The issue in these cases is whether the Department of Environmental Protection should grant an environmental resourced permit and a variance from the provisions of Rule 40C-4.032(c), Florida Administrative Code, for a project proposed by J.B.'s Fish Camp.
Findings Of Fact The Parties. Respondent, J.B.'s Fish Camp (hereinafter referred to as "J.B.'s"), consists of a restaurant and aquaculture facility. J.B.'s is owned by John Bollman. J.B.'s is located on an unnamed branch of the Indian River (hereinafter referred to as "Indian River North "), near Bethune Beach, Volusia County, Florida. J.B.'s is located approximately eight miles south of Ponce de Leon Inlet, which provides access to the Atlantic Ocean. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, reviewing environmental resource permit applications for certain docks, applications for sovereign submerged lands leases, and variance applications for construction of structures which potentially may pollute waters designated as Aquatic Preserve. Petitioners, William and Jill Crouthers, reside at 6828 Engram Road, Bethune Beach, Florida. Their residence is approximately 300 feet south of J.B.'s. Mr. Crouthers operates a sailboat, and a motorized boat in Indian River North, adjacent to J.B.'s. Petitioner, Paul Tyre, resides at 6820 Engram Road, Bethune Beach, Florida. His residence is approximatley 250 feet south of J.B.'s. Mr. Tyre has often boated in Indian River North, adjacent to J.B.'s. J.B.'s Existing Facility. At the time of the formal hearing of these cases, J.B.'s operated a resturant on the shore of Indian River North. J.B.'s owns approximately 308 feet of shoreline. The waters in which J.B.'s docks are located have been approved by the Department for conditionaly restricted shellfish harvesting. The waters have been designated Class II waters, an Aquatic Preserve, and an Outstanding Florida Water. J.B.'s has two existing docks in Indian River North and connected to the shoreline of J.B.'s property. One dock is "L" shaped and is located adjacent to the restaurant (hereinafter referred to as the "Existing Restaurant Dock"). J.B.'s other dock is "T" shaped, and is located near a bait shop operated by J.B.'s south of the Existing Restaurant Dock (hereinafter referred to as the "Existing Bait-Shop Dock"). The Existing Restaurant Dock is used by patrons of the restaurant and by J.B.'s to unload shellfish which are raised and harvested by J.B.'s. Passengers are also loaded from the Existing Restaurant Dock on tour boats operated by J.B.'s. Boats are docked at both docks by partons of the restaurant. At times as many as 40 boats may be docked at J.B.'s. The Existing Restaurant Dock is only designed to reasonably dock less than 10 boats. More boats are docked at the Existing Restaurant Dock because they are "rafted". "Rafting" is the docking of a boat at a dock and then tying other boats to the side of the docked boat. Additional boats are then tied to the outside boat. Boats are also anchored on the bottom around the docks and the immediate area. The existing docks are in relatively shallow water. As a consequence, prop dredging takes place at low tide near the docks. J.B.'s Proposed Project. In June of 1989 J.B.'s filed an application with the Department seeking a permit which would allow it to replace the existing docks with a ten-slip dock to replace the Existing Restaurant Dock, a concrete boat-launching ramp adjacent to J.B.'s existing bait shop, and six-slip dock to replace the Existing Bait-Shop Dock. On or about September 16, 1996, J.B.'s requested a variance from the requirements of Rule 40C-4.302©, Florida Administrative Code. The proposed facilities were described in the application, in part, as follows: The proposed docking facility will consist of a primary dock 24-feet wide by 75-feet long attached to an existing concrete patio. An 8- foot wide walkway will extend from the north end of the main dock, extending 80-feet to the north. Three finger piers will be constructed perpendicular to and extending waterward from the walkway. One will be four feet wide, the other two will be 2'6" wide. They will extend waterward sixteen feet. . . . . . . . Another existing dock, in a "T" shape is located 35' north of the applicants' south property line. The existing dock extends waterward 73'6" and is 4' wide. The top of the "T" section is 46'6" by 4' wide. Four finger piers 2/6" wide by 16' long will be constructed waterward from this dock and one finger pier 2'6" wide by 10' long will be constructed parralell to the shore line. . . . J.B.'s represented in the application that the dock be constructed to replace the Existing Restaurant Dock (hereinafter referred to as the "Proposed Restaurant Dock"), would be used by boaters visiting the restaurant, and to unload shellfish. J.B.'s respresented in the application that the dock to replace the Existing Bait Shop Dock (hereinafter referred to as the "Proposed Bait Shop Dock"), would be used as rental spaces for six boats. Due to concerns raised by the Department about J.B.'s initially proposed project, J.B.'s modified its proposal: The width of the Proposed Restuarant Dock was reduced from 24 feet to 10 feet, except where the dock will intersect with an existing platform; The Proposed Restaurant Dock was moved further from shore and into deeper waters; The proposed boat ramp was eliminated completely; and The Proposed Bait-Shop Dock was eliminated and the Existing Bait-Shop Dock is to be completely removed. As finally approved by the Department, the project will consist of the following sixteen-slip Proposed Restaurant Dock (hereinafter referred to as the "Proposed Project"): A 10-foot long walkway running waterward of the existing concrete deck, will be built over the Existing Restaurant Dock; The walkway will connect with a 10-foot walkway running parallel to the shoreline for a distance of approximately 224 feet; Sixteen slips will extend waterward of the parallel walkway, for a total width of walkway and slips of 26 feet; Two slips will be roofed for use for J.B.'s commercial fishing activites. The roof will be peaked, rather than flat; and A railing of a minimum of 3-feet high will be constructed along the landward side of the Proposed Restaurant Dock in an effort to discourage boats from mooring in locations other than the 16 approved slips. A number of conditions on the issuance of the variance sought by J.B.'s have been imposed by the Department on the Proposed Project: This variance is validonly if a wetland resource management permit is issued for this project, and is subject to any and all conditions on the permit. The granting of this variance does not guarantee the issuance of the permit. This variance shall be valid through the life of the permit, if one is issued. Where necessary, proper turbidity controls shall be used to prevent violations of the State Water Quality Standard for turbidity. Further details of turbidity control may be specified in the permit, if one is issued. There shall be no more than sixteen boats moored at the structure. No overboard discharges of trash, human or animal waste, or fuel shall occur at the dock. Any non-water department structures, such as gazebos or fish cleaning stations, shall be located on the uplands. Further design details may be specified in the permit. Any proposed or anticipated boat shelter shall not have enclosed sides. The mooring area shall be located in waters sufficiently deep to prevent bottom scour by boat propellers. Any structures located over grassbeds shall be designed so as to allow for the maximum light penetration practicable. Further design details may be specified in the permit, if one is issued. The boat ramp shall be peermanently closed. Given good cause by either party, the District Director may alter the terms and conditions of the variance. The following conditions on the permit being sought by J.B.'s designed to protect manatee have been accepted by J.B.'s: The number of slips available for boat usuage be limited to 16. Rafting, anchoring or pulling boats ashore shall be prohibited; The existing boat ramp shall be closed; The standard manatee construction conditions are followed for all in water construction; Manatee caution signs and/or information displays are installed and maintained; Distribute copies of "Volusia County Manatee Protection Zones" booklets available free of charge from the Florida Inland Navigation District. J.B.'s also agreed to establish a conservation easement over an area of approximately 224-linear feet of shoreline (excluding an area dedicated as a public easement). The area of the conservation easement must be planted by J.B.'s with littoral vegetation. J.B.'s has agreed to plant mangroves. J.B.'s will use pilings for the Proposed Restaurant Dock of a type approved by the Department with regard to potential leaching of preservatives into the surrounding waters. J.B.'s Applications. On or about June 7, 1989 J.B.'s filed an application with the Department for what was then referred to as a "wetlands resource or dredge and fill permit". On or about September 16, 1996 J.B.'s applied for a variance from Rule 40C-4.302(1)(c), Florida Administrative Code. This Rule requires that a permit application be denied if a project will result in damage to areas in Class II Waters and areas approved for shellfish harvesting. In support of its Proposed Project, J.B.'s submitted the following: A hydrographic study prepared by a civil engineer. J.B.'s Exhibit 4; An Aquatic Preserve Report prepared by an environmental consultant. J.B.'s Exhibit 14; and A shoreline planting plan for mangroves prepared by the environemantl consultant that prepared the Aquatic Preserve Report. J.B.'s Exhibit 15. J.B.'s also applied for a submerged lands lease in conjunction with its permit application and request for variance. The evidence, however, proveed that the Department has not yet given notice of its intended action on the submerged lands lease. Whether the submerged lands lease should be granted is, therefore, not issue in this proceeding. The Department's Proposed Approval and the Challenges Thereto. The Department decided to enter a notice of intent to issue the permit and variance sought by J.B.'s. On January 6, 1997, notice of the Department's decision was published in a local newspaper. On or about January 17, 1997 Paul Tyre filed a letter challenging the Department's proposed decision. The letter was not filed within 14 days of the date notice of the Department's decision was published. Therefore, the Department dismissed Mr. Tyre's request for hearing. The Department subsequently discovered that the published notice indicated that challenges could be filed with 21 days of the date of publication. When the Department discovered this fact, it accepted Mr. Tyre's request for hearing. On or about Janaury 23, 1997 William and Jill Crouthers filed a Joint Petition challenging the Department's proposed decision. The Impact on Water Quality. There will be some turbidity during the construction of the Proposed Project. That turbidity will be temporary. Steps will be taken to minimize the amout of turbidity through the use of reasonably available turbidity controls. By moving the Proposed Restaurant Dock into deeper water than the water in which the Existing Restaurant Dock is located, turbidity caused by boats which frequent the dock will be reduced. This impact is a positive benefit which will be realized from the project over existing conditions. The evidence also proved that tidal flow in the area is sufficient to adequately disperse any pollutant discharges. There are impacts to the quality of water surrounding the existing facilities as a result of boats using the existing docks, fish cleaning on the docks, and the boat ramp. These impacts would continue regardless of whether the Proposed Project is approved. At issue, therefore, is whether the Proposed Project will worsen those impacts. The evidence proved that the Proposed Project will not result in a worsening of the impacts to water quality. In fact, the Proposed Project should lessen those impacts. The Proposed Project will reduce existing impacts to water quality by improving the depth at which boats will dock, the elimination of fish cleaning on the docks, the elimination of the Existing Bait Shop Dock, and the elimination of the existing boat ramp. Impacts to water quality may also be lessened if J.B.'s adheres to the conditions imposed by the Department on the docking of boats at the Proposed Restaurant Dock. J.B.'s has represented to the Department that the conditions designed to reduce the number of boats that can be moored at the Proposed Restaurant Dock are acceptable and will be adhered to. At the formal hearing, Mr. Bollman indicated some doubt about his ability to insure that conditions concerning the number of boats moored at the Proposed Restaurant Dock are always carried out. Whether Mr. Bollman believes that the conditions are capable of enforcement by J.B.'s, Mr. Bollman and J.B.'s have indicated agreement to the issuance of the permit with the conditions. Therefore, whether Mr. Bollman believes the conditons can be carried out, he is bound to carry them out. The evidence presented by Petitioners concerning the impact on water quality failed to address the impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate to the Indian River Lagoon generally. Those documents constituted hearsay and did not address impacts on water quality from J.B.'s Proposed Project. The weight of the evidence proved that the proposed facilities will not cause a violation of water quality standards. Impact on the Public Health, Safety and Welfare and the Property of Others. The evidence in this case proved that the Proposed Project will not adversely impact the public health, safety, and welfare. Considering the permit with the conditions imposed, the impact on the public health, safety and welfare of the area should be slightly improved over existing conditions. Petitioners suggested that the Proposed Restaurant Dock will cause an increase in the number of boats that frequent J.B.'s. This suggestion is based upon the size of the new dock and their assumption that the conditions of the permit concerning the limitation on the number of slips and the manner in which boats may be moored will not be enforced. That is an assumption that cannot be made for purposes of this review. Reviewing the permit with its conditions, the number of boats that moor at the Proposed Restaurant Dock should be reduced. J.B.'s has agreed to be bound by the conditions. That is all that is required for purposes of this review. Failure to adhere to the conditions, if that occurs, is an enforcement issue. The evidence proved that the Proposed Project should not have an adverse impact on the property of others. Impact on Conservation of Fish and Wildlife, Including Threatened or Endangered Species, of Their Habitat. The depth of water in the area of the Proposed Restaurant Dock is approximately three feet. There is no vegetation at the footprint of the dock. Benthic organisms are present in the footprint area, but their numbers and diversity should not be adversely affected by construction, and operation of the dock. Due to the lack of vegetation in the area, fish and other wildlife are not attracted to the area around the Proposed Restaurant Dock. The shoreline area of J.B.'s is also devoid of significant emergent vegetation. The Proposed Project should not disturb grasses or vegetation that do exist. There are mangroves located at the north end of J.B.'s They will not be impacted by the construction or operation of the dock. The parties stipulated that at least 16 manatee utilize Indian River North. They travel to and from foraging, mating and resting areas in Indian River Lagoon. The evidence failed to prove that the Proposed Project will increase any negative impacts to manatee in the area. The evidence failed to prove that the area of the Proposed Restaurant Dock constitutes a feeding, mating or resting area for manatee. Although little specific evidence concerning manatee was presented, it appears that the most serious danger to the manatee are associated with boats striking manatee. The evidence failed to prove the extent, if any, to which manatee mortality or injury is associated with boats utilizing the docks at J.B.'s. The evidence also failed to prove that the Proposed Project will increase any such negative impact that may already be taking place. The conditions imposed on J.B.'s concerning the protection of manatee may lessen any current impact on manatee from boats utilizing J.B.'s. These conditions provide greater protection than currently exists. The evidence presented by Petitioners concerning the impact on fish and wildlife, including threatened and endangered species, or their habitat, failed to address impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate the Indian River Lagoon generally. Those documents constituted hearsay and did not address impacts from J.B.'s Proposed Project. The evidence proved that the impact on fish and wildlife, including threatened or endangered species, or their habitat, will be minimal. Impact on Navigation, the Flow of Water, Erosion and Shoaling. Water depths in the area of J.B.'s increase gradually away from the shoreline to approximately five feet. There is no central, dredged channel in Indian River North. The distance between the most waterward edge of the Proposed Restaurant Dock and the opposite shoreline is approximately 250 feet. The Proposed Project will extend over approximately 18 percent of the total width of Indian River North at J.B.'s. The navigable channel of Indian River North is located to the east of the center of the water body adjacent to J.B.'s. It is slightly closer to J.B.'s than it is to the opposite shore. There is sufficient water depth and area between the most waterward side of the Proposed Restaurant Dock and the opposite shore for the passage of manatee and boats. If the conditions of the permit relating to the number of boats that may dock at the Proposed Restaurant Dock are adhered to, the proposed facility should slightly improve navigation because of the elimination of rafting of boats. Currently, shoreline erosion in the area of J.B.'s is caused from landward activities and not boat wakes. The evidence failed to prove that the amount of erosion that does occur from boat wakes will be any greater as a result of the Proposed Project. The conservation easement and the shoreline plantings agreed to as a condition of the Department's approval of the proposed facility will add protection to the shoreline at J.B.'s, and should reduce erosion. The permit condition prohibiting boats from mooring outside of designated moorings should reduce prop scouring near shore. Moving the Proposed Restaurant Dock further from shore should also reduce prop scouring. These conditions will result in a positive benefit over current conditions. The evidence presented by Petitioners concerning the impact on navigation, the flow of water, erosion and shoaling failed to prove that there will be negative impacts from the Proposed Project. Petitioners presented evidence of an anedotal nature. That evidence related to the existing docks and not the Proposed Project. The evidence proved that there will be no negative impacts to navigation, or the flow of water as a result of the Proposed Project. The evidence also proved that the Proposed Project will not cause erosion or shoaling. Impact on Fishing, Recreational Values, and Marine Productivity in the Vicitnity of the Project. The Proposed Project will result in a slight increase in recreational values in the vicinity of J.B.'s. The evidence failed to prove that the Proposed Project will have an adverse impact on fishing or marine productivity in the vicinity of J.B.'s. Temporary or Permanent. The Proposed Project will be permantent in nature. Impact on Historical and Archaeological Resources. The Proposed Project will have no impact on historical or arcyhaeological resources. Impact on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Proposed Activity. The evidence proved that the Proposed Project will not adversely affect current conditions, or the relative value of functions being performed by areas affected by the Proposed Project. Because of shoreline plantings, the conservation easement and the increased depth of water where boats will be docked, the areas affected by the docks at J.B's will be slightly improved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection granting the permit and variance sought by J.B's Fish Camp with the conditions agreed to by J.B.'s Fish Camp, and dismissing the petitions filed by William and Jill Crouthers and Paul Tyre in these cases. DONE AND ENTERED this 30th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Robert J. Shields, Qualified Representative 6863 Engram Road New Smyrna, Florida 32169 Paul Tyre 6820 Engram Road New Smyrna Beach, Florida 32169 Thomas I. Mayton, Jr., Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Mary D. Hansen, Esquire STORCH, HANSEN and MORRIS, P.A. 1620 South Clyde Morris Boulevard, Suite 300 Daytona Beach, Florida 32119
