The Issue Whether the subject site is within Petitioner's permitting jurisdiction and whether an earthen dam constructed at the subject site required a permit? Whether Respondent should be required to remove the earthen dam and/or be required to pay Petitioner's investigative costs?
Findings Of Fact Petitioner is the agency of the State of Florida that regulates dredge and fill activities conducted in wetlands within its statutory jurisdiction as set forth in Chapters 373 and 403, Florida Statutes. Respondent owns the subject property, which is located in the 200 block of Jan Drive in Section 18, Township 4 South, Range 13 West, Bay County, Florida. On July 22, 1999, Mr. Keisker met informally with Respondent at Respondent’s request and made a field visit to the subject property. Mr. Keisker told Respondent that he thought the subject property was within Petitioner’s permitting jurisdiction. Although Mr. Keisker took soil samples, surveyed the plant life of the area, and observed the hydrology of the area, his visit was not intended to be an official determination that the subject property was within Petitioner's permitting jurisdiction. There is no dispute that an earthen dam was constructed across the unnamed creek, described in findings of fact paragraph 5, in late 1999 or early January 2000. The central issue in dispute is whether the site of the earthen dam is within Petitioner’s permitting jurisdiction. Respondent asserts that the area at issue is a drainage ditch that did not naturally occur and is not within the permitting jurisdiction of Petitioner. Petitioner asserts that the area is an unnamed creek in a historical, natural wetland that is within its permitting jurisdiction. The greater weight of the credible, competent evidence established that Respondent’s property contains an unnamed creek that is located in an area of historically natural wetlands that was likely excavated in the 1970's by the local Mosquito Control District. This area of natural wetlands drains and connects into Rogers Pond and Calloway Bayou, which are Class III waters of the State of Florida. The site is within the permitting jurisdiction of Petitioner. 2/ Respondent did not receive a permit prior to the construction of the earthen dam. Construction of the earthen dam constitutes unpermitted fill activity in a wetland within Petitioner's regulatory jurisdiction. Shortly after Petitioner received a complaint in January 2000 that it had been constructed, the dam was partially breached as the result of a heavy rain event. To prevent further pollution of the unnamed creek, the remaining portion of the earthen dam should be removed by non- mechanical means. Mr. Keisker testified that he calculated Petitioner’s investigative costs based on the amount of time he expended in investigating this matter multiplied by his hourly rate of pay. In calculating his hourly rate of pay, he took his annual salary and added to that 52 percent of his annual salary for fringe benefits. He then divided that sum by 2000, which represents 50 work weeks of 40 hours per week. He used 50 weeks to calculate the hourly rate to adjust for two weeks of paid vacation. Based on his calculations, Mr. Keisker testified that Petitioner incurred costs and expenses in excess of $750.00 during its investigation of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained herein and requiring Respondent to remove the remaining portions of the earthen dam by non-mechanical means. DONE AND ENTERED this 29th day of March, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of March, 2001.
Findings Of Fact Taken together, the evidence is clear that, if the Respondent did what he is accused of doing, his conduct: (1) would have been inconsistent with the standards of public conscience and good morals; (2) would have been sufficiently notorious to bring the Respondent and the education profession into public disgrace or disrespect; (3) would impair the Respondent's service in the community; and (4) would have been so serious as to impair the Respondent's effectiveness in the school system. But it is found that the School Board's evidence did not prove the allegations. The ultimate finding of fact is based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officer. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew the Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn whether the Respondent engaged in, or had a reputation for engaging in, the kind of conduct he was accused of doing. In this case, although the testimony of the arresting police officer is not accepted, it is not found that his testimony was pure fabrication. Rather, it is found that, due to his mindset and expectations, the arresting police officer misinterpreted much of the conduct he observed involving the Respondent on January 24, 1995. On that day, the police officer was patrolling Lake Seminole Park in Pinellas County, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual), activities for which the park had become notorious to the police department and to many others who frequented the park. The police officer on duty at the park that day expected users of the park to know its reputation, and he expected to find homosexual men using the park for these notorious purposes. As a result, knowing nothing about the Respondent, he misinterpretated innocent or ambiguous behavior of the Respondent as evidence of criminal conduct. He also attributed little or no importance to behavior of the Respondent that was evidence of his innocence of criminal charges. In addition, as a result of the manner in which he conducted his operation, he initiated the situations from which the misinterpreted behaviors flowed. After the officer announced that he was placing the Respondent under arrest, the Respondent may have made statements in an effort to avoid any further adverse repercussions; the officer interpreted them as admissions of guilt. Finally, the officer may have exaggerated or embellished some of his testimony to support the validity of the arrest he ultimately made. When the officer first saw the Respondent, the Respondent was driving his car on roads in the park in excess of the speed limit. The officer decided to follow in his vehicle because the Respondent was speeding but overlooked the possibility that driving at a high speed generally was inconsistent with "cruising" the park, a more normal behavior for one looking for opportunities to engage in the criminal conduct the officer was investigating. When the Respondent pulled into the parking lot of a rest room pavillion in the park, the officer continued to suspect that the Respondent's purpose was criminal. The officer attributed no significance to the Respondent's turning into the first available driveway into the parking lot and driving the wrong way on a one-way drive to enter the parking area. What the officer did not know was that the Respondent is on diuretic medication for high blood pressure and that, partly as a result, he has to urinate frequently and has difficulty controlling his need to urinate. As he was driving down the street, the Respondent began to feel the urge to urinate and decided to enter the park as a likely place to find a convenient rest room. The officer followed the Respondent into the parking lot and parked in a space to the left of the Respondent's space, between the Respondent's space and the rest room pavillion. When the Respondent did not immediately get out of his car, the officer suspected that the Respondent was waiting for him. What he did not know was that the Respondent was driving shoeless and was putting his shoes on. When the Respondent got out of his car, he had an unlit cigarette in his hand. He did not think he had any matches on him and, as he was walking past the officer's parked car, he tapped the cigarette he was holding with his other hand in a gesture to ask the officer for a light and approached the driver side of the officer's car. When the Respondent got to the driver side of the car, the officer rolled down the window, and the Respondent asked for a light. He could see through the officer's open driver side window that the officer did not have matches or a portable lighter but had pushed in his car cigarette lighter. As a result, the Respondent had to wait for the lighter to heat up. No words were spoken while the Respondent waited. However, by the time the Respondent got his light and was ready to leave, he felt the need to touch and hold his crotch area to delay urination. (The officer inaccurately called this "massaging" the groin area.) The Respondent apparently also made some noises as a result of his distress, which the officer interpreted as "low moaning." The officer saw a "bulge" in the Respondent's pants in the area of the crotch and misinterpreted it as being an erection. As soon as the Respondent got his light, he said thanks and walked directly to the rest room pavillion. The officer testified that, when the Respondent got far enough away so that the officer could see the Respondent's face and head, the Respondent nodded to him. If so, it may have been in thanks or acknowledgement for lighting the cigarette. But the officer, still interpreting the Respondent's behavior as the prelude to criminal activity, misinterpretated the nod as an invitation to follow the Respondent into the rest room. Unbeknownst to the Respondent, the officer followed him to the men's room. The officer acknowledges that, as he approached the men's room, he could hear the Respondent urinating. As the officer entered the men's room (unobserved by the Respondent), he saw the Respondent leaving the urinal next to the toilet stall at the far end of the rest room and entering the toilet stall. There was no one else in the men's room. The Respondent intended to use the toilet stall, but it was soiled so he flushed it and, with his pants still down and his penis exposed, switched back to one of the urinals, where he finished urinating. The officer again failed to be impressed with the possible consistency of the Respondent's behavior with that of a man who needed to find a toilet and urinate in a hurry. Instead, the officer focused on the Respondent's moving from the toilet stall to the urinal with his penis exposed and misinterpreted it as being part of a course of criminal conduct. While the Respondent was in the toilet stall, a car could be heard driving through the parking lot. As the Respondent left the toilet stall and switched to the urinal, the officer asked him if he knew where the car had gone, and the Respondent answered that he thought it left. The officer interpreted the Respondent's answer as incriminating; meanwhile, the Respondent was beginning to get suspicious about the officer's intentions. Nothing else happened for the officer to misinterpret while the Respondent finished urinating. No words were exchanged. Then, while standing behind and to the right of the Respondent as he finished urinating, the officer initiated conversation by asking the Respondent, "well, what do you want to do?" (The Respondent also recalls the officer commenting that the Respondent was "hard" earlier but couldn't "get it up" any more; the officer does not recall those comments.) By this time suspicious of the officer's intentions, the Respondent half turned in the direction of the officer while continuing to shake his penis to stop it from dripping urine, and testily asked back, "what do you want to do?" (The Respondent may also have been exaggerating the motion of shaking urine off his penis as a way of establishing the intruder's intentions, as in "is this what you want?") The officer did not see the Respondent's penis long enough to be able to say whether the Respondent had been circumcised; he only could say that it was not erect and generally describe its size and color. Yet, misinterpreted and erroneously described the gesture as "masturbating." Intending to shake up the intruder, the Respondent also asked him, "do you live around here?" In the officer's exaggerated and embellished retelling to buttress the validity of the arrest, this question became a conversation in which the officer expressed discomfort "doing it" in the men's room and the two discussed where they could go to have sex in private. The very next thing that happened was the officer's announcement that he was a police officer and that the Respondent was under arrest. The Respondent asked incredulously, "arrested for what?" Then, afraid of the obvious repercussions of an arrest for lewd conduct on his teaching position and certification, the Respondent said things for the purpose of trying to avoid those repercussions that served instead to confirm the officer's view that the Respondent was guilty. At one point, the Respondent told the officer that, if the officer let him go, the Respondent would promise never to return to Lake Seminole Park. The officer took the promise as an admission that the Respondent frequented the park when in fact the Respondent was telling the truth when he earlier denied ever having been to the park before. When the Respondent told the officer that he was coming from work, the officer asked where he worked, and the Respondent identified his job at ETC Molex but at first omitted to say that he also worked at Osceola Middle School, which he just had left. The officer never had heard of ETC Molex and somehow understood the Respondent to be saying that he worked at Bay Pines Hospital. After the Respondent retrieved identification from the glove compartment of his car, he lit another cigarette with matches he found in the glove compartment. The officer thought the Respondent got the cigarette (along with his driver's license) from his coat pocket. This misunderstanding served to confirm the officer's misconception that the Respondent's initial request for a light for his cigarette was just an excuse to make contact with the officer for purposes of planned criminal activity. The officer also thought the Respondent was lying when the Respondent told the officer earlier that his identification was in his car. When the officer saw on the Respondent's driver license that he lived in south St. Petersburg, he asked the Respondent why he drove to Lake Seminole Park if he was on his way home from "work" (i.e., from Bay Pines Hospital, which also is south of Lake Seminole Park). At that point, the Respondent corrected the officer's misunderstanding as to his place of employment and told the officer that he also was a PE teacher at Osceola Middle School. He also corrected the officer's misunderstanding as to his destination--he told the officer that he was going to a meeting at the Pinellas County Classroom Teachers Association, which is north of Lake Seminole Park, not directly home. In the officer's mind, the Respondent had been dissembling, and he interpreted the dissembling as evidence of guilt. After the Respondent's arrest, and during the pendency of criminal proceedings, the School Board did not interview the Respondent in deference to his constitutional right not to say anything that might incriminate him; nonetheless, the School Board went forward with its proceeding to dismiss the Respondent. After the criminal proceedings were dismissed, and this case was scheduled for final hearing, the School Board did not seek to interview the Respondent due to the Respondent's representation by counsel; nonetheless, the School Board continue to prosecute the dismissal proceeding. At no time before the taking of the Respondent's deposition in this proceeding did the School Board ask to interview the Respondent to hear his side of the story of what happened on January 24, 1995; on the other hand, there is no evidence that either the Respondent or his attorney requested such an interview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges against the Respondent and reinstating him with full back pay. RECOMMENDED this 30th day of October, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0898 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Rejected as not supported by any evidence. Also, the position taken by the School Board has been that the Respondent was not on continuing contract. See also proposed finding 33. 3.-4. Accepted but subordinate and unnecessary. 5.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Accepted but unnecessary without proof that the Respondent knew he was passing rest rooms on his way to the rest room he used. 8.-10. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the gesture was to roll down the window. Accepted and incorporated. The officer's misinterpretation of what he saw and heard is rejected as not proven. Accepted and incorporated. Rejected as not proven that the Respondent gestured for the officer to follow. 16.-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19.-20. Rejected as not proven that the Respondent urinated into the toilet. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent turned towards the officer until after the officer started talking to him. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. Rejected as not proven that the Respondent was masturbating. Otherwise, accepted and incorporated. Rejected as not proven. 25.-26. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as not proven. Rejected as not proven that the wallet was in his coat pocket the whole time. Accepted; in part incorporated and in part subordinate to facts contrary to those found. Rejected as not proven that the matches were in his coat pocket the whole time. First sentence, rejected as not proven that he said "to read." (That was either a misunderstanding or part of the officer's embellishment of his story.) Otherwise, accepted and incorporated. 32.-34. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. (The Respondent's proposed findings of fact appear to be in the "Argument" section of the Respondent's Proposed Recommended Order. For purposes of these rulings, the unnumbered paragraphs of the "Argument" section are assigned consecutive numbers.) Accepted and incorporated. The Respondent initiated conversation at the officer's car outside the rest room pavillion; the officer initiated conversation inside the rest room. Also, there were conflicts in the testimony at earlier points in time, too. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as argument. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. The rest is rejected as argument, as subordinate and as unnecessary. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Lawrence D. Black, Esquire 650 Seminole Boulevard Largo, Florida 34640 Howard Hinesley Superintendent of Schools School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649-2942 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issues are whether Respondent Thidadeau is entitled to a Noticed General Permit, pursuant to Florida Administrative Code Rule 62-341.427, and a Letter of Consent, pursuant to Florida Administrative Code Rule, to construct a single family dock in the central embayment of the Loxahatchee River in Palm Beach County.
Findings Of Fact By Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit filed August 14, 2002, Respondent Paul Thibadeau (Applicant) requested a Noticed General Permit (NGP) and Letter of Consent for a single-family dock to be constructed at his home located at 129 River Road, Palm Beach, Florida (Application). The dock would extend from the southern shore of the Central Embayment of the Loxahatchee River, which is Class III waterbody that is also an Outstanding Florida Water and Aquatic Preserve. At the time of the filing of the Application, Applicant's contractors and Respondent Department of Environmental Protection tried various alignments to avoid impacts. Petitioner Board of Commissioners of Jupiter Inlet District (District) is an entity created by the Legislature to operate and maintain the Jupiter Inlet and maintain and preserve the Loxahatchee River. The District's jurisdiction covers the Central Embayment and Applicant's property. The District employs an engineer to inspect the Central Embayment for navigational hazards. Intervenors Andrea Cameron and Jeffrey Cameron and Douglas Bogue reside in shoreline property to the west of Applicant's property. The Camerons and Mr. Bogue live on the same cove that the west side of Applicant's property abuts. Mr. Bogue's parcel is the second parcel to the west of Applicant's parcel, and the Camerons' parcel is the third parcel to the west of Applicant's parcel. Intervenors swim, fish, birdwatch, boat, and otherwise use the area in which Applicant would construct the dock and platform. Applicant has owned his property for a little over seven years. Applicant's property consists of nearly 1.5 acres of land that forms a peninsula jutting into the Central Embayment from the southern shoreline near the Alternate A1A bridge, which marks the east end of the Central Embayment. Applicant owns 1000 linear feet of shoreline. The proposed dock and platform would be constructed on the northwest side of Applicant's property. Applicant currently owns a dock, measuring five feet into the water by 67 feet along the shoreline, in the canal on the east side of his property. The water depth at this dock is only four inches at the lowest tides and less than one foot at mean low water. Seagrasses--mostly shoalgrass and threatened Johnson's seagrass--grow in the vicinity of this dock, and it is a reasonable inference, given the nearby seagrass beds, prevailing shallow depths, shading effect of the present dock, and the relocation of prop and boating disturbances, that seagrass would recolonize the area of the existing dock, after it is removed. Applicant has agreed to amend either the NGP or Letter of Consent to condition the approval of the construction and use of the proposed dock upon the removal of the existing dock. The Application describes a dock that is 270 feet long and four feet wide. At the end of the dock is a 160 square-foot terminal platform. The diagram shows the dock running 110 feet due north from an upland point that is ascertainable only approximately by reference to a concrete sidewalk and mangrove fringe depicted on the drawing. The dock then turns to the northwest and runs 160 feet to the terminal platform, which measures 5.3 feet by 30 feet. Boat-lift pilings are waterward of the waterward edge of the platform. The diagram depicts approximations of water levels, at mean tide, along the dock. The shorter run of the dock ends in water two feet deep, at mean tide. The longer run crosses a long sandbar and terminates between the 3.5- and 4-foot contours. A cross-section in the Application shows mean high water at about 1.0 feet (presumably National Geodetic Vertical Datum, or NGVD) and mean low water at about -0.5 feet NGVD. The cross-section reveals that the waterward edge of the terminal platform is at almost -3.33 feet NGVD and the landward edge of the terminal platform is at about -3.2 feet NGVD. This means that, at mean low water, the water level would be a little more than 2.75 feet deep at the waterward edge of the terminal platform and about 2.75 feet deep at the landward edge of the terminal platform. The pilings, which are waterward of the waterward edge of the terminal platform, are at -3.5 feet NGVD. This means that, at mean low water, the water level would be about 3 feet deep at the most waterward pilings. However, the second slip, which mostly runs along the end of the dock, not the terminal platform, is in shallower water. According to a drawing that is part of the Application, the waterward end of this slip is at the same depth as the landward end of the terminal platform, so it would be in about 2.75 feet of water at mean low water, and the landward end of this slip is at -2.0 feet NGVD, so it would be in about 1.5 feet of water at mean low water. Disagreeing with this drawing, Applicant Exhibit 61 indicates that the shallowest water depth at the second boat slip is at least two feet at mean low water. Although the scale of District Exhibit 62 prevents a precise determination, District Exhibit 62 seems to agree with this value, as well as other landward values, contained in Applicant Exhibit 61. The superior detail of both of these exhibits, as compared to that of the drawing accompanying the application, compels a finding consistent with the deeper water levels reported on Applicant Exhibit 61 and District Exhibit 62. Thus, the water depth, at mean low water, is at least two feet at the second boat slip. DEP environmental scientists visited Applicant's site twice before issuing the permit and snorkeled the area proposed for the dock to find the location that would result in the minimum impacts. On the first visit, the DEP scientists did not record the tide, but, in the second visit, they snorkeled the area at mean low water. After DEP approved the permit, its scientists snorkeled the site a third time, also at mean low water. Applicant has worked closely with DEP at all stages of the permitting process. In fact, early discussions resulted in several different alignments and locations for the proposed dock. After DEP's environmental scientists determined for themselves the location of the seagrass beds in the affected area, Applicant settled on a location and alignment acceptable to the DEP scientists and revised the application (Revised Application). The Revised Application locates portions of the dock deck over some seagrass beds, but adds restrictions, beyond those normally imposed on docks built in Aquatic Preserves, to reduce or eliminate the impacts of the dock on these seagrass beds. The Revised Application narrows the dock deck by one foot to three feet, replaces solid decking with grated decking for the first 200 feet from the shoreline, adds handrails for the first 200 feet from the shoreline, and raises the elevation of the dock deck from five feet to seven feet above mean high water for the first 200 feet from the shoreline. The Revised Application also changes the width of the terminal platform from 5.3 feet to 6 feet and its length from 30 feet to 25 feet. The Revised Application clearly identifies two boat slips: one on the waterward side of the long side of the terminal platform and one perpendicular to the first slip, along the north side of the end of the dock deck. Lastly, the Revised Application reduces the dock deck from 270 feet to 250 feet to the shoreline. The proposed alignment of the dock passes between two relatively small seagrass beds immediately offshore of the northwest side of Applicant's property. The cove contains a large seagrass bed, mostly confined to water depths of less than 1.5 feet at mean low water. A little more than 50 feet of the dock passes over the eastern edge of this large seagrass bed, and the most waterward 40-50 feet of the dock passes over bottom that is uncolonized by seagrass. The seagrass that is traversed by the dock is mostly confined to the long sandbar that the dock would cross. Petitioner presented several alternatives to the present alignment. These are depicted in District Exhibit 79. Petitioner and its witness ultimately selected Alternative F, which would be a shorter dock running to the northeast off the northern tip of Applicant's property. Passing over little, if any, seagrass, this dock would terminate in a hole that is three feet deep at mean low water. However, Alternative F provides Applicant with little better access than he has at present. The northern route to the channel requires several turns and passes over much seagrass. The longer eastern route runs over 600 feet in a narrow, turning channel that contains only 1.5-2.0 feet of water at mean low water. This side of Applicant's property is more exposed to currents and winds than the west side abutting the cove, so accurate navigation of a vessel with the engine trimmed partly up would be more difficult. Channels, especially shallow ones, shift over time and shoal up, especially given this tendency within the Central Embayment. The Central Embayment is a shallow waterbody prone to shoaling due to sedimentation. The main channel through the Central Embayment generally runs along the north shoreline of the Central Embayment, although it runs in a more central location as it approaches the Alternate A1A bridge at the east end of the Central Embayment. Applicant's property, which is close to the A1A bridge, is relatively close to the main channel. A shallow area with interspersed seagrass beds separates Applicant's property from the main channel. Applicant operates a 24-foot boat with a 200- horsepower outboard motor. The boat requires 12 inches of water to float with the engine up and 24 inches of water for the skeg and prop to clear the bottom with the engine down and the boat operating at idle or low speed. To ingress or egress the existing dock, Applicant can operate his boat only within two hours of high tide. To reach the main channel, Applicant must navigate poorly marked, local channels. The longer local channel runs east from Applicant's property and requires several turns. The shorter local channel runs north of Applicant's property and enters the southern access channel at a point near to its junction with the main channel. The southern access channel is an important channel in the Central Embayment, whose shoreline has been densely developed. A long sandbar runs through the center of the Central Embayment. Rather than navigate to the west of the sandbar, most boat operators coming from the south shoreline take the southern access channel, which shortens the time it takes for them to leave the Central Embayment. A mangrove island at the east end of the long sandbar is located immediately north and west of the southern access channel, just west of its junction with the main channel. Directly across from the mangrove island, in a southeasterly direction, is the northwest side of Applicant's property, from which the dock would extend, running toward the southern access channel. Boating traffic in the southern access channel may reach over 100 trips during a 10-hour period on weekends. In the vicinity of the proposed terminal platform, two large, privately installed pilings exist nearly in the center of the southern access channel. The closer of these pilings would be about 95 feet from the proposed terminal platform. One of the pilings marks the junction of the southern access channel with the main channel. The closer piling is between the proposed platform and the mangrove island to the northwest. Boats operate to the south and east of these pilings, typically at planing speeds of at least 20 miles per hour. In the vicinity of the proposed terminal platform, the southern access channel is 120-150 feet wide, and the waterward edge of the platform is about 70 feet from the center of the channel. The bathymetry in the vicinity of the proposed platform reduces the navigational hazard posed by the proposed project. The -3 and -4 feet NGVD contours run parallel along the southern edge of the southern access channel in the vicinity of the proposed terminal. Both contours, on either side of the proposed terminal, take sharp turns landward 25-50 feet on either side of the proposed platform. The effect of this bathymetry is to create a sort of submerged cove for the proposed terminal platform, which is protected from passing boat traffic from the fact that these contours are generally 25-75 feet further waterward on either side of the platform. For instance, at mean tide, boaters approaching the area of the platform would presumably wish to stay in water deeper than three feet, so they would unlikely find the platform to be a navigational hazard. Additionally, an imaginary line extending from the takeoff point of the dock on Applicant's shoreline, along the dock, to a point on the opposite shoreline would run about 13,800 feet. This line would run just east and north of the mangrove island described above. The drawing of riparian lines at this location is much more difficult due to the irregular shoreline and the orientation of the southern access channel. Originally, Applicant proposed a riparian line that ran from the westernmost extent of his property, which is located at the end of the waterway running along the west side of the property. Dutifully running this line perpendicular to the orientation of the southern edge of the southern access channel, Applicant deprived a corner of his neighbor's property of any riparian rights at all. During the hearing, Applicant redrew proposed riparian lines. The appealingly named, "Equitable Allocation" line does more justice to the neighbor by not crossing his property. Instead, this line runs roughly along the middle of the canal- like waterway on the west side of Applicant's property and, at the mouth of this waterway, turning to the northwest to run perpendicular to the southern edge of the southern access channel. The problem with the "Equitable Allocation" line offered by Applicant emerges when it is considered in broader scale, sufficient to encompass not only Applicant and his neighbor to the immediate west, but also that neighbor's neighbor to the immediate west. The "Equitable Allocation" line does no equity to the riparian access of one of the two landowners to the west of Applicant. However, the task in this case is not to draw riparian lines, but to determine whether the proposed dock or platform is within 25 feet of another landowner's riparian line. Applicant Exhibit 62 draws the 25-foot offset line. If the riparian- rights line runs perpendicular to the orientation of the southern access channel (the so-called "Equitable Allocation"), the terminal platform and dock are offset by more than 25 feet from the line. If the riparian-rights line extends property lines without regard to the orientation of the channel, then the platform, but not the dock, would be within the 25-foot offset. As noted in the Conclusions of Law, case law teaches that the location of the channel and property boundaries receive consideration in establishing riparian rights. When based on the larger-scale map of Applicant Exhibit 63, any equitable application of these factors would not result in the establishment of a riparian rights line within 25 feet of the proposed terminal platform or dock. The proposed dock and platform would impact the aesthetic enjoyment of nearby landowners and others using the waters of the Central Embayment. Swimmers and sunbathers set up on the sandbar and throw balls and flying disks. The proposed dock would divide the sandbar into two sections of about 170 feet and 100 feet. The impact of the dock, with its pilings spaced at ten-foot intervals, is unclear on these recreational users, as it is on users of canoes and kayaks, which also occupy these waters. The record does not portray a high-energy, strong-current environment in this area, which is essentially at the mouth of a small cove, so it is difficult to infer that typical currents will create unsafe conditions for swimmers, kayakers, or canoeists around the pilings. Likewise, the record does not establish the net impact of the dock and platform on fish, birds, and other wildlife using the area. The platform covers submerged bottom that is uncolonized by seagrass, and, given its coarse sand and shell hash, as well as the water depths and water clarity, this bottom is unlikely ever to be colonized by seagrass. The portion of the dock that traverses seagrass will shade this vegetation, but the effect of shading is mitigated by the seven-foot elevation of the deck, translucency of the decking material, and near north-south orientation of the deck. The construction of the takeoff of the deck will not require significant alterations to the existing mangrove fringe. The issue of cumulative impacts is not that the average dock in the Central Embayment is 80 feet, and the proposed dock is over three times longer. Nor is it that only two docks on the southern shoreline of the Central Embayment would equal or exceed in length the length of the proposed dock, and one of these two docks serves a planned unit development. The length of the dock is subordinate to the depth of the water to be reached by the dock. The more relevant issue, as to cumulative impacts, is that the proposed dock would extend to water whose depth is -3.5 feet NGVD, and the majority of docks in the Central Embayment terminate in water at least one foot shallower. An estuary whose urbanized shoreline appears almost condominiumized in aerial photographs, the Central Embayment will undergo shoreline development to match whatever DEP permits in its most generous permitting decisions. However, a close examination of District Exhibit 62 reveals numerous examples of docks or platforms terminating in -3.5 or even -4.0 feet NGVD, so the potential of the Letter of Consent generating cumulative impacts, strictly in the termination depths of docks, is small. The most relevant concern, as to cumulative impacts, is the potential for the construction of docks where no docks presently exist and the number of such docks that would need to extend 250+ feet to reach water depths comparable to those reached by the proposed dock and platform. Perhaps landowners abutting such extensive stretches of flats have been discouraged from trying to obtain permits for such lengthy structures. Perhaps Applicant himself was emboldened to seek the present NGP and Letter of Consent due to the permitting of the other single- family dock of comparable length on the southern shoreline. The problem as to this aspect of cumulative impacts is that the record does not support findings as to the number of littoral parcels without docks and the number of such parcels that would require docks of 250+ feet to reach the depths involved in this case. These cumulative impacts, if any, are too speculative to assess. Thus, the analysis of cumulative impacts in this case is necessarily restricted to consideration of the impacts of some additional pressure to construct docks to one-foot deeper water than has historically limited docks and the accumulation of additional impacts to resources, such as seagrass, or recreational uses, such as boating and swimming, from an authorization to build the proposed dock and platform. The record does not support findings of significant adverse cumulative impacts from this proposed activity. Moreover, the elimination of 335 square feet of shallow-water dock and the possible recolonization of seagrass, including threatened Johnson's seagrass, mitigate any cumulative impacts and limit or even eliminate the precedential value of the permitting decisions in this case.
Recommendation It is RECOMMENDED that the Department of Environmental Protection: Grant the Noticed General Permit. Grant the Letter of Consent upon two conditions: a) the prohibition against any boat mooring to the slip for any period of time, if the boat requires more than two feet of water with its engine in normal operation position and the boat operating at idle or slow speed; and b) the removal of the existing dock prior to the construction of the new dock and platform. DONE AND ENTERED this 25t day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy Lewis, Longman & Walker, P.A. SunTrust Building 1001 3rd Avenue West, Suite 670 Bradenton, Florida 34205 Thomas F. Mullin Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Marcy I. Lahart Marcy I. Lahart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 John S. Yudin Guy & Yudin, LLP 55 East Ocean Boulevard Stuart, Florida 34994 Toni Sturtevant Assistant General Counsel Christine A. Guard Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
Findings Of Fact DOT has been engaged for some years in a program to improve U.S. Highway 1, which runs through the Florida Keys. The program has involved highway paving, and reconstruction of most of the bridges. The roadway and bridge construction projects require large amounts of fill material. DOT has experienced an increase in the cost of obtaining fill material in the Florida Keys. To lessen the cost of the fill material DOT is seeking to open a borrow pit on Dudjoe Key. The pit, and an adjoining roadway would cover approximately fourteen acres. DOT initially filed a permit application with DER, seeking approval to construct the pit. DER ultimately issued a notice of intent to deny the application on the grounds that reasonable assurances had not been given that the short-term and long-term effects of the proposed project would not violate water quality standards set out in DER's rules and regulations. DOT thereafter filed a request for variance from the water quality standards so that the pit could be permitted. This proceeding ensued. Petitioner is a Florida corporation which does business in Monroe County, Florida. Petitioner has engaged in numerous public road and bridge construction projects in the Florida Keys and in the selling of fill material for road and bridge construction projects. Petitioner currently owns and operates a "borrow pit" on Cudjoe Key. Petitioner's pit is located within one- half mile of DOT's proposed pit. The purpose of the DOT pit would be to provide fill material which the Petitioner currently provides from its Cudjoe Key pit. DOT originally asserted that operation of a state borrow pit would result in savings of nine million dollars. This assertion has been scaled down to three million dollars, and more recently to 1.5 million dollars. Basically, DOT asserts that fill from a state-owned pit would be cheaper because the operation costs would be approximately the same, but no royalty would need to be paid for the material. DOT sought to establish the amount of potential savings at the hearing through two kinds of analysis: First, DOT offered the testimony of its former cost estimator as to the costs per cubic yard of fill from a state-owned pit as opposed to fill from a private contractor pit; and second, DOT offered bid submissions that have been made by contractors in recently bid projects in the Keys, and which had alternative bids for state-owned and private contractor supplied fill material. DOT's estimator calculated that the State would save approximately 1.5 million dollars through operation of a state-owned borrow pit. The testimony, however, is not of probative value, and cannot serve as the basis for a finding to that effect. In the first place, many of the estimator's figures were determined through private conversations that he had with various unnamed contractors. This hearsay evidence is not cumulative nor corroborative of other evidence, and cannot therefore serve as the basis for a finding of fact (See discussion at Paragraph 2 of the Conclusions of Law, infra.). Furthermore, the estimator underestimated the heavy equipment that would be required to operate the borrow pit; underestimated the cost of the equipment; did not include insurance, social security, and overtime in labor costs; overestimated by twice the number of swings that a dragline would be able to make; and underestimated the cost of moving equipment to the site. Methodology used by the State's estimator would appear to be the best that is available to the State in making initial estimates as to the cost of proposed road-building projects. The State does not have the detailed cost information available to it that private contractors have. While useful for the purpose of making preliminary estimates of the cost of proposed projects, the methodology is not adequate to support a finding of fact based as it is upon hearsay, and containing numerous miscalculations. The second line of analysis offered by DOT to establish the amount of possible savings was a comparison of recent bids submitted by contractors. Special provisions drafted by DOT for the Park and Bow bridge projects using two alternatives for embankment or fill material. Alternate "A" in the bid called for state-furnished material. The low bidder on the project was Atlantic Foundation Company, Inc. Under Alternate "A", Atlantic bid a price of $9.35 per cubic yard for embankment material, and $12.00 under Alternate "B". This would have resulted in a total of $222,574.00 lest using the Alternate "A" bid on the Park and Bow projects. The second low bidder, MCC of Florida, Inc., bid $11.13 for material under Alternate "A", and $14.02 under Alternate "B". Alternate "A" would have been $247,752.00 cheaper under the MCC bid. Petitioner was the next low bidder, and it bid $10.05 per cubic yard under Alternate "A", and $10.25 under Alternate "B". Hardaway Constructors, Inc., was the only other bidder, and it offered $10.00 under Alternate "A", and $10.25 under Alternate "B". The potential savings in favor of Alternate "A" under all of these bids is reduced somewhat by clearing and grubbing costs which were bid separately by the contractors. Clearing and grubbing costs would actually have made Alternate "B" cheaper under the bids submitted by Petitioner and Hardaway. Clearing and grubbing costs would not, however, continue as a cost item in subsequent projects, because once clearing and grubbing is accomplished, it would not need to be done again. DOT seeks to apply bid differentials submitted for the Park and Bow Channel jobs to determine the potential saving the State could realize by using a state-owned landfill for the remaining road and bridge projects in the Keys. Approximately 402,039 cubic yards of embankment material will be needed to complete the remaining projects. Using the high differential between Alternates "A" and "B" submitted for the Park and Bow Channels (that submitted by MCC), which was $2.89 per cubic yard, the potential saving would be $1,161,892.00. Using the low differential (twenty cents per cubic yard as submitted by Petitioner), savings would be $80,407.00. Subsequent to the hearing, DOT awarded the Park and Bow Channel construction to the low bidder, Atlantic Foundation, Inc. The Alternate "B" proposal was accepted. DOT did not accept that proposal because of a preference to do that, but rather so that the otherwise advantageous bid could be accepted despite the pendance of this proceeding. During the hearing, bids were opened for two new road and bridge projects in the Keys: the Kemp and Torch-Ramrod Channel Projects. The apparent low bidder on these projects was the Petitioner. Petitioner bided a price of $11.00 for embankment material if provided by a private contractor, and $10.80 if provided from a state-owned pit for the Kemp project, and $10.40 and $10.20 respectively for the Torch-Ramrod Project. The differences between the two reflect differences in hauling distance. The price differentials for contractor versus state provided embankment material in projects that have already been let cannot be used to determine with any precision the amount of saving that would inure to the State through opening its own borrow pits. Potential savings depend upon many factors. The primary of these factors is which contractor happens to make the lowest bid for the project, and this in turn depends upon the contractor's cost figures for many items other than embankment material will receive the bid only if the total bid is lower than that submitted by other contractors. It is clear that opening a state-owned borrow pit would result in some savings. It appears that $10.00 per cubic yard is the lowest possible price that could be expected for contractor- provided fill material. It appears that state-furnished material could reach a price as low as $7.00 per cubic yard, although none of the bids submitted up to the time of the hearing reflected such a price. It appears that the highest potential saving would be less than the approximately one million dollars that would have been saved if the price differential reflected in the Atlantic Foundation bid on the Park and Bow Channel projects became the differential in all subsequent projects. It also appears that the saving would be somewhat more than the eighty thousand dollar saving that would inure if the price differential reflected in the Petitioner's bid on the Park and Bow projects remained consistent. Beyond these parameters, the evidence would not support a finding as to the amount of savings. The fourteen-acre site of the proposed borrow pit is presently comprised entirely of tidally inundated wetland areas. Approximately two-thirds of the area has average water depths up to six inches. The southeastern portion of the site is dominated by buttonwood, and red, black and white mangrove. All of these species are wetland indicator species under DER's rules and regulations. A large number of mollusks inhabit the area, and it is a feeding area for birds, and for deer. The area of the proposed borrow pit is within the Key Deer Refuge, which is managed by the Refuse Division of the United States Fish and Wildlife Service. There is now a stable herd from 350 to 400 Key deer, an endangered species, and they feed primarily on mangrove. There are 15 to 20 deer in the Cudjoe Key area. The deer do presently feed in the area of the proposed borrow pit. The proposed pit, including the access roads, would comprise approximately fourteen acres. It would be located landward of a berm so that there would not be a constant exchange of waters between the pit and surrounding areas. There would be an initial two-foot drop form the edge of the pit, and then a slope of five-to-one extending into the pit. A ten-to-one slope would be preferable because ultimately vegetation would be ore easily established in such a slope area. The term "Borrow pit" is actually a euphemism for a mining operation. Material would be extracted from the pit to be used as embankment material on the Keys road and bridge projects. The pit would ultimately reach a depth of more than thirty feet. Construction of the borrow pit would result in obliteration of approximately fourteen acres of a natural wetland environment in the Keys. All the flora and fauna presently on the site would be destroyed. During the time that the pit is being constructed and actively operated, violations of DER's standards for turbidity, lead, oils and greases, and transparency would be likely. Once the mining operation terminates, these short-term impacts would lessen; however, violations of the Department's dissolved oxygen standards would be likely as long as the pit exists. A viable biologic community could be established along the fringes of the pit, but in the deeper areas, low dissolved oxygen levels would be a limiting factor. Other mining operations in the Keys and elsewhere in Florida confirm the likelihood of dissolved oxygen violations. Loss of the fourteen acres of feeding ground for the Florida Key deer would be a significant loss in terms of preservation of that species. The proposed borrow pit is located adjacent to U.S. Highway 1. On the other side of the highway, there is a housing development. Operation of the borrow pit, especially blasting activities would inevitably prove a nuisance to residents of that area. One witness testified that blasting would likely cause damage to the residences, but this was not confirmed by competent, scientific evidence.
The Issue Whether Wayne Zimmet's proposed single-family boat dock and lift project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rule 40E-4.051(3)(c).1
Findings Of Fact Both Wayne Zimmet and Scott Rosenblum own property in Tequesta, Florida, in a community known as North Passage, which has a man-made navigation and drainage easement canal that terminates at its eastern end at Mr. Rosenblum's property, which is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property, which is Lot 75, at 8750 Riverfront Terrace, is south of the eastern terminus of the canal. The Rosenblum and Zimmet properties are adjacent and share a common boundary. There is an existing dock extending from Mr. Rosenblum's property into the canal. The existing dock is perpendicular to, and extends west from the middle of, the shore of the eastern terminus of the canal. There is a wooden walkway leading from the residence on Mr. Rosenblum's property to the existing dock. However, there also has been a wooden walkway leading from Mr. Zimmet's property to the existing dock. As indicated in the Preliminary Statement, there is a dispute between Mr. Zimmet and Mr. Rosenblum as to who is entitled to access and use the existing dock--and in particular the south side of the existing dock. That dispute will be resolved in state circuit court.2 For purposes of this proceeding, it will be assumed that Mr. Rosenblum has the right to use the existing dock. On or about May 25, 2006, Mr. Zimmet filed an application requesting an ERP exemption to install an eight-foot by twenty-foot (160-square feet) marginal dock with a two-pile elevator lift to designed to accommodate his boat, which is approximately 24.5 feet long (22 feet at the waterline) and eight feet wide. According to documentation submitted with the application, the proposed dock would be centered along the waterfront of his property and extend approximately four feet into the canal. The proposed boat lift would be skewed toward the western end of the proposed marginal dock with the intent being to dock his boat with the bow facing the west so that proposed dock could be used to enter and load the boat from the stern. This positioning of the proposed lift and boat at the proposed dock would skew a boat on the lift at the proposed dock about three feet to the west, away from the existing dock. Based on the evidence, it is found that Mr. Zimmet did not prove by a preponderance of the evidence that his proposed boat dock and lift, even if skewed to the west as indicated in the application drawings, would not "impede navigation" to and from the south side of the existing dock. (Otherwise, Mr. Zimmet's proposed dock and lift would not "impede navigation" in the canal.) This impediment to navigation to and from the south side of the existing dock is not a mere inconvenience. Although Mr. Rosenblum now only owns and uses a raft at the existing dock, he testified that he plans on purchasing and using a boat. Boats in the range of approximately 24.5 feet in length with a beam of 8 to 8.5 feet are common in the North Passage canal. A boat of that size docked at the south side of the existing dock would barely fit alongside Mr. Zimmet's boat, whether docked or on the lift, and there would not be a reasonable amount of clearance for navigating a boat of that size commonly to or from the south side of the existing dock if Mr. Zimmet's boat were docked at the proposed dock or on the proposed lift. (Likewise, if a boat of that size were docked on the south side of the existing dock, there would not be a reasonable amount of clearance for Mr. Zimmet to use his proposed dock and lift.) There was no evidence of any impediment to navigation to and from the north side of the existing dock.
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, absent a circuit court determination that Mr. Rosenblum does not have the right to access and use the south side of the existing dock, Mr. Zimmet's proposed dock and lift project is not exempt from the need to obtain an ERP. DONE AND ENTERED this 23rd day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2007.
The Issue The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.
Findings Of Fact Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500. By that time, the $1,500 check had been cashed. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation. By July 15, 1992, Rose had completed his investigation and prepared an 18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage). By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client. At all times material hereto, Respondent W. Polero was unlicensed. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license). No prior disciplinary action has been taken against Respondent J. Polero. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/ As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a Final Order: Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000. Imposing an administrative fine of $2,000 against William Polero. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL 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 21st day of March 1994.
Findings Of Fact Petitioner is a private yacht club located on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida. Founded some five years ago, the club provides a wide array of boating and social functions for its membership. It sits on the north side of Bayway Boulevard and is approximately 50 feet east of Clearwater Pass Avenue. The property is rectangular shaped and has dimensions of approximately 420 feet by 120 feet. The widest portion of the property fronts Clearwater Harbor to the north and Bayway Boulevard on the south. The yacht club is situated within an area currently zoned by the City as CTF-28 (high density commercial-tourist). This District provides for a complete range of motel-hotel developments with a major emphasis on tourism. The primary permitted uses and structures within the CTF-28 District are combination hotel, motel, apartment and business buildings, apartment houses, townhouse developments and restaurants. A number of special exceptions to the permitted uses are authorized within a CTF-28 District. These include, inter alia, three types of marina facilities, namely, Type A (pleasure craft docking), Type B (launching ramp site, commercial) and Type C (private marina). The City has never classified Petitioner under any of these categories. Upon obtaining a Type C classification, a property owner may engage in 12 separate uses of the property as a matter of right, and a thirteenth upon obtaining specific Board approval. These include: (a) sales and service facilities, (b) boat slips (excluding covered boat slips or dry storage unless specific Board approval is obtained), (c) boat handling equipment, (d) boat and gear storage, (e) launching facilities, (f) fuel station, (g) lockers and sanitary facilities, (h) restaurant facilities (not advertised), (i) club house, (j) motel or boatel, (k) recreational facilities (not commercial), (l) park or picnic area, and (m) automobile parking. Petitioner now engages in all permitted activities except items (a), and (j). It does not wish to engage in the latter three uses even if the application is granted. All activities presently conducted are done so in a manner consistent with the requirements of the Zoning Ordinance. On the east side of Petitioner's property is a multi-story restaurant and lounge while to the west lies a 4-story condominium complex (Bayside 17). Directly across Bayway Boulevard and to the south are two high-rise condominium complexes, one of which is still under construction. Boat docking facilities are located on the waterfront throughout the area, including that of Petitioner and adjacent property owners. The area may be generally described as a combination of high density residential and commercial buildings and structures catering to the tourist or part-time resident. The proposed reclassification is compatible with the surrounding properties and the character of the land. Its uses fit within the general scheme of zoning for a CTF-28 District, and are consistent with the Land Use Plan. The chief concern of the adjacent property owners who testified is a fear that reclassification of the property will diminish the view of the water now enjoyed across the clear space on the west side of Petitioner's property. However, since no change in the use of the property will be made by virtue of reclassification, the existing view should not be impaired.
Findings Of Fact Upon consideration of my observation of the witnesses and their demeanor while testifying, documentary evidence received including the parties pre- hearing stipulation, the following relevant facts are found: Respondent DOT filed a dredge and fill permit based on its application filed with Respondent DER and proposed to upgrade a 4.9 mile segment of State Road 80 from a 2-lane roadway to a rural 4-lane divided roadway which included construction of new north and south bound bridges over a canal (designated as L- 8) and constructing a triple box culvert to replace the existing bridge over Callery Judge Canal, located from 20 mile bend to 5.5 miles west of State Road 7, Palm Beach County, Florida. (Joint Composite Exhibit 1). Respondent DER published the required notice of its intent to issue the applied for permit by DOT in the April 14, 1986 edition of the Palm Beach Post Times, a newspaper of general circulation. Petitioner is the fee simple owner of the property located to the west of Callery Judge Canal. Petitioner's property includes a drainage easement which has been given to the Seminole Water Management District and includes submerged portions of the canal. Callery Judge Canal is a water control structure. Callery Judge Canal is connected to another canal designated as C-51, which is also a water control structure. The length of Callery Judge from the C-51 Canal extends approximately 400 feet. There are water control structures at the end of Callery Judge Canal and approximately 4 miles both east and west of the C-51 Canal. As such, there is limited navigability of the C-51 Canal by Petitioner. The C-51 Canal is used by Petitioner and unidentified public members for recreational navigation purposes. There is no commerce navigation on either the C-51 or Callery Judge Canal. Petitioner currently has navigational access to C-51 through Callery Judge. Petitioner owns two boats which he has from time to time used on the Callery Judge Canal to get to the C-51 Canal. Both C-51 and Callery Judge Canal are Class 3 water bodies. Respondent DER has dredge and fill jurisdiction over both canals as they connect to state waters. Respondent DOT, in addition to publishing notice in the Palm Beach Post Times, sent written notice to adjacent property owners advising them of DOT's application and only Petitioner protested based on his claim of impaired navigation from Callery Judge to C-51. Additionally, Petitioner objected on the basis that the project would adversely affect his riparian rights of access to C-51 and that the effect of issuing of the requested permits would amount to the taking of private property without first making payment of full compensation to him. The existing bridge which expands Callery Judge Canal does not meet state safety practices inasmuch as there is only the approximately 2 feet between the edge of the travel lane to the face of the railing. This space provides only a 2 foot recovery lane for disabled vehicles. With the triple box culverts as applied for by DOT, an adequate recovery lane of approximately 10 feet will be provided which meets state safety requirements for recovery lanes. (Testimony of Midgett). The triple box culverts will allow for DOT to complete its planned widening of the bridge on both ends and thereby eliminate adverse safety concerns relating to traffic "bottle necking." Fish, alligators, and other wildlife will be able to continue passing from Callery Judge to C-51 after installation of the triple box culverts as proposed by DOT and therefore there will be no adverse impacts on fish and wildlife conservation. The proposed culverts will allow drainage to continue and water flow will not be constricted. Following construction of the triple box culverts, Petitioner may continue to enjoy other riparian rights that he presently enjoys. Thus, Petitioner may continue to swim and bathe in Callery Judge Canal. Petitioner may also continue to navigate Callery Judge for fishing and other recreational purposes. There are no marinas, boat lifts, boat ramps or other facilities on C- 51 or Callery Judge Canals which would provide navigation access to the canals by the general public. The one boat facility in either canal is a boat ramp in C-51 maintained by the South Florida Water Management District. The Palm Beach County Health Department, a local approved DER program, (pursuant to Section 403.916, Florida Statutes), reviewed the subject application and determined that DOT's application, with modifications incorporated in Respondent DER's intent to issue, provided the reasonable assurances and was in the public interest pursuant to Section 403.918(2), Florida Statutes. Petitioner's riparian rights to navigate Callery Judge Canal and access to C-51 would be impaired by the Respondent DOT's installation of the triple box culverts as applied for. However, when these adverse impacts are balanced against the other factors as required pursuant to Section 403.918(2), Florida Statutes, Petitioner's adverse impacts are considered to be negligible. Respondent DOT has provided Respondent DER reasonable assurances that water quality standards will not be violated based on the proposed project. Respondent DOT has provided Respondent DER reasonable assurances that by use of turbidity screens during construction of the culverts, turbidity values 50 feet down stream from the project site will not exceed 29 N.T.D.'s above background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation, grant Respondent, Department of Transportation, a dredge and fill permit as set forth with the conditions accompanied in its Notice of Intent to Issue, based on the determination herein that the proposed activities are not contrary to the public interest. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1846 Rulings on Respondent, Department of Environmental Regulation's proposed Recommended Order. Paragraph 12, adopted as modified, paragraphs 12, 17 and 18, Recommended Order. Paragraph 13, adopted as modified, paragraphs 15 and 16, Recommended Order. Paragraph 18, rejected as unnecessary for resolution of the issues. Paragraph 19, adopted as modified, paragraph 15, Recommended Order. Paragraph 21, first sentence adopted and remainder rejected as being speculative or conclusionary. Paragraph 24 the parties Stipulation and other statements respecting the parties positions were not incorporated in the Recommended Order as being unnecessary or was not the subject of testimony based on the stipulation. Rulings on Respondent, Department of Transportation's proposed Recommended Order. Paragraph 1 adopted as modified, paragraph 8, Recommended Order. Statutory and Code provisions are not recited in the Recommended as findings of fact. However, official notice was taken of the pertinent rules, regulations and statutory provisions. Paragraph 4 substantially adopted, paragraphs 3, 4 and 5, Recommended Order. Paragraph 12 rejected as being unnecessary to determine the issues posed herein and based on the ultimate determination that the project was in the public interest, paragraph 15, Recommended Order. Rulings on Petitioner's proposed Recommended Order. Paragraph 5, first sentence attributable to Respondent, Department of Transportation, rejected as no evidence was introduced to substantiate that Respondent DOT was unaware that Petitioner was owner and holder of a riparian property right of access. Paragraph 4, last sentence rejected as evidence adduced indicates that Petitioner's rights to gain access between his riparian lands and the C-51 canal was considered, paragraph 16, Recommended Order. Paragraph 5, last sentence rejected as there was a determination that the proposed project was in the public interest and that any impairment of Petitioner's access was counter balanced against public considerations as required in Section 403.918(2), Florida Statutes. Paragraph 16, Recommended Order. Paragraph 6, rejected as being contrary to other credited evidence which indicates that the proper balancing test was in fact made. See paragraphs 10-18, Recommended Order which deals with the consideration of the public interest criteria set forth in Section 403.918(2), Florida Statutes. COPIES FURNISHED: Mark S. Ulmer, Esquire 200 SE Sixth Street, Suite 404 Ft. Lauderdale, Florida 33301 Mel Wilson, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32301 Karen A. Brodeen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
