The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 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 29th day of September, 1995.
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The respondent Mariner Properties, Inc., also referred to herein as the "applicant", is the owner of South Seas Plantation, a vacation resort located on Captiva Island. This resort development comprises some 300 acres, with two miles of gulf-front beaches and four miles of bayfront. Located on the northern end of the Island is an existing large yacht basin or marina with facilities for docking boats up to 100 feet in length. While this marina does have slips for about eight small boats (under 24 feet in length), the facility is not well suited for the docking of small boats because of the height of the docks. Fueling services are available at this marina and an active search and rescue service operates out of the marina, with no charge to boaters in distress. A smaller boat basin exists on the southern portion of the Island, which basin was enlarged by the applicant pursuant to a permit issued by DER in 1975. The applicant has also been granted a permit to construct boat docking facilities within the small boat basin. Finger slips for about 43 small boats - - up to 24 feet in length, are planned, but construction has not yet begun. The small boat basin will not have fueling facilities for the boats. If the requested permit is granted, the rescue service which operates out of the larger yacht basin plans to dock one of its service boats in the small basin. The small basin will also serve as a refuge area for small boaters during a storm or inclement weather. In May of 1977, Mariner Properties, Inc., submitted its application to the DER to modify an existing permit by dredging an access channel to connect its small boat basin to the waters of Pine Island Sound. In its present modified form, the applicant requests a permit to maintenance dredge a channel 250 fee long, fifteen feet wide, to a depth of -3.0 feet, mean low water. Approximately 195 cubic yards of material will be excavated to construct this channel and the spoil will be unloaded on an upland area. The project will involve the destruction of almost 4,000 square feet of seagresses. Mr. Kevin Erwin, an environmental specialist with the Department of Environmental Regulation, made site inspections and performed a biological assessment of the area as it relates to the proposed project. It was his conclusion and recommendation that the application be denied based on the expected significantly adverse immediate and long-term impacts upon water quality and marine resources. Mr. Erwin was concerned with the elimination of almost 4,000 square feet of productive vegetated estuarina bottoms. Seagrasses provide an essential habitat to many marine species, act as an important nursery and feeding ground for young fish and shrimp, stabilize marine bottoms and contribute nutrients to the foodweb. The witness further felt that there was a potential for water quality violations within the channel. Mr. Erwin did observe cuts or propeller scars in the grass beds adjacent to the proposed channel. Such cuts or scars take a long period, up to fifteen years, to heal. He felt that boat traffic to and from the small boat basin should be restricted by a marked easement, as opposed to a dredge channel. Mr. Erwin's District Manager, Phillip R. Edwards, reviewed the subject application and observed the area in question. It was his oral recommendation to Tallahassee that the permit be granted. Mr. Edwards observed the seagrass cuts in the area adjacent to the proposed dredging project and concluded that more damage would result without a channel. While Mr. Edwards agreed that a potential for water quality standards existed, he felt that a channel would minimize the overall damage caused by boats continuing to travel over the adjacent seagrass areas. Mr. Forrest Fields, an environmental specialist with DER, reviewed the present application and Mr. Erwin's biological assessment of the area. He did not concur with Erwin's conclusion regarding violations of water quality standards, and felt that the applicant had given reasonable assurances to the contrary. Mr. Fields was of the opinion that a minimal channel would be less damaging to grass beds than the uncontrolled ingress and egress of boats utilizing the small boat basin. The public interest concerns of the basin being opened to the boating public and the basin being used by a rescue service without charge to boaters in distress were also expressed in the notice of intent to issue the permit prepared by Mr. Fields. Mr. Ross McWilliams, an environmental specialist with DER who reviews the work and recommendations of Mr. Fields, also recommended that the permit application be granted. Mr. McWilliams balanced the definable public loss which would ensue from the elimination of the 4,000 square feet of grass beds against the public benefit to be gained for the availability of the project to the boating public and the operation of a marine rescue service form the small boat basin. It was his conclusion that the proposed project would not be contrary to the public interest. A considerable portion of the testimony of this proceeding was devoted to the issue of whether a previous channel existed on the proposed site. Taken as a whole, the evidence establishes that the area which the applicant seeks to deepen is presently deeper than the surrounding grass flats. Aerial photographs received into evidence indicate by a straight while line some human activity and that the area in question has been used as a channel. All expert witnesses agreed that at least the shorewared 20 to 25 feet of the area appeared to have been disturbed. It could not be conclusively determined whether and when a channel had been dredged and, if so, the extent of the same. It is clear, however, that the specific area had been used as an access channel for the small boat basin in question. The area over which the applicant seeks to dredge is a shallow grass flat inhabited by turtle grass (Thallasia) and Cuban Shoal weed (Halodule), and is a very productive area in the marine ecosystem. The waters are within the Pine Island Sound Aquatic Preserve, A Class II body of water. No rules, regulations or management plan have been promulgated by the Department of Natural Resources for the Pine Island Sound Aquatic Preserve. The proposed channel is to be of a "box-cut" design with a flat bottom and vertical walls. Such a design is likely to create the need for frequent maintenance due to the possibility that the soft sides will slough inward. If further maintenance dredging becomes necessary, a permit for the same from the Department of Environmental Regulation would be required. If granted authority, the applicant would accomplish the dredging by utilizing either the "mud cat" type of dredge or a clam shell dragline mounted on a barge. Turbidity curtains will used to minimize the effects of loosening the bay bottoms and proliferation of silt by the dredging operation. All material excavated from the proposed channel will be deposited on an upland site. The petitioners in this cause either own or manage waterfront property within the Pine Island Sound Aquatic Preserve, and utilize the waters thereof. They have adequately demonstrated their substantial interest in the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to Mariner Properties, Inc. a permit for the channel dredging project to the conditions set forth in Section III (B) of the Department's Proposed Order of Issuance executed on November 0, 1978, and subject to any forms of consent which may be required under Florida Statutes, Section 253.77. Respectfully submitted and entered this 11th day of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman Casey J. Gluckman 5305 Isabelle Drive Tallahassee, Florida 32301 Kenneth G. Oertel Truett and Oertel, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32301 Ray Allen Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Secretary Jake Varn Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SANIBEL-CAPTIVA CONSERVATION FOUNDATION, ROBERT RAUSCHENBERG and FLORIDA AUDUBON SOCIETY, Petitioner, vs. CASE NO. 78-2422 DEPARTMENT OF ENVIRONMENTAL REGULATION and MARINER PROPERTIES INCORPORATED, Respondent. / By the Department:
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issues to be determined in this case are whether the amendments to the Town of Ponce Inlet Comprehensive Plan adopted by Ordinances 2008-01 (2008 Amendment) and 2010-09 (2010 Amendment) are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Petitioner, Pacetta, LLC, is a Florida limited liability company that owns real property in Ponce Inlet. Petitioner, Mar-Tim, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Down the Hatch, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Pacetta, LLC, controls and manages Mar-Tim and Down the Hatch. Petitioners' real property in the Town is directly affected by the challenged plan amendments. Petitioners submitted objections to the Town during the period of time beginning with the transmittal hearing and ending with the adoption of the challenged amendments. The Town of Ponce Inlet is a municipality in Volusia County that adopted a comprehensive plan in 1990 ("Town Plan"), which it amends from time to time pursuant to chapter 163, Florida Statutes. Petitioners' Property Petitioners' property is located on the north cut of the Ponce de Leon Inlet. The current uses on the property include a restaurant, a marina and boat repair yard with a marine travel lift, and vacant lands. An old cemetery is located on a portion of Petitioners' property. A shell midden (ancient refuse pile) is located on a portion of Petitioners' property. Petitioners' property has single family residences on three sides. A significant tree canopy is adjacent to Petitioners' property and large oak trees are on the property. A historic cemetery known as Pacetti Cemetery is near Petitioners' property. Several historic buildings are located near Petitioners' property. A museum and exhibit building are located nearby on Beach Street. Beach Street and Sailfish Drive are the main roads to access the Petitioners' property. These two roads have been designated by the Town as Scenic Roads. Petitioners' property comprises approximately 15 acres. About 2.4 acres are zoned for multifamily development. The remaining acreage is zoned Riverfront Commercial. There is also a special Riverfront Overlay District ("ROD") that covers Petitioners' property. Background There are at least three areas in the Town designated Riverfront Commercial. The Riverfront Commercial land use category permits wet boat storage, dry boat storage, boat sales and services, fishing charter boat dockage, fishing and boat equipment and supplies, seafood markets, restaurants, boatels, and boat construction and repairs. There is only one area in the Town designated ROD. In the ROD, land uses are more restricted. Dry boat storage facilities are allowed by special exception in Riverfront Commercial, but not within the ROD. The Town created the Riverfront Commercial District and the ROD in its Land Use and Development Code in 2004, but these land use categories were not identified in the Town Plan at that time. After the designation of the ROD in 2004, Petitioners began to acquire several parcels of land located within the ROD. The Town continued to engage its citizens in a visioning process for the Town's waterfront, which lead to the 2008 Amendment. As originally proposed, the 2008 Amendment allowed upland boat storage in the ROD under certain conditions in Future land Use Element ("FLUE") Policy 4.1.5. A citizens group obtained a sufficient number of signatures to place on the general election ballot a charter amendment to prohibit dry boat storage facilities in the ROD. Therefore, when the Town adopted the 2008 Amendment, it changed FLUE Policy 4.1.5 to prohibit dry boat storage facilities. Petitioners challenged the charter amendment in circuit court and the court determined that the charter amendment was invalid. The court also invalidated FLUE Policy 4.1.5, determining that the policy was only adopted to conform to the charter amendment. The circuit court decision was affirmed on appeal. Town of Ponce Inlet v. Pacetta, LLC, 63 So. 3d 840 (Fla. 5th DCA 2011). Petitioners also asked the circuit court to invalidate the ROD provisions of the Land Use and Development Code, but the circuit court declined to rule on their validity. Following the court's invalidation of FLUE Policy 4.1.5, the Town adopted the 2010 Amendment, which creates a new Policy 4.1.5. The new policy also prohibits dry boat storage facilities in the ROD. Petitioners' Objections Petitioners' overarching objection to the plan amendments is that they prohibit Petitioners from building a dry boat storage facility. Petitioners claim the prohibition is inconsistent with other policies of the Town Plan and is not supported by data and analysis. The term "dry boat storage facility" is not defined in the Town Plan. The Volusia County Manatee Protection Plan ("MPP"), which is adopted by reference in Coastal Management Element ("CME") Objective 1.6, defines dry boat storage facility as "an upland structure used for storing watercraft." Petitioners already store some boats on trailers or boat stands on the upland while they are being repaired or refurbished in the boatyard. The Town interprets the Town Plan to allow this type of upland storage in the ROD, citing FLUE Policy 4.1.4 of the 2008 Plan Amendment which explains that dry boat storage means "multiple level boat racks" in "fully enclosed buildings" and not the "[l]imited storage of boats on trailers or boat stands" in conjunction with boatyard operations. FLUE Policy 4.1.5 Petitioners' objections to FLUE Policy 4.1.5, which was adopted in the 2010 Amendment, are addressed first because the associated issues affect the other policies that have been challenged. FLUE Policy 4.1.5 states: The Town shall maintain a zoning overlay district over those Riverfront Commercial and High Density Multi-family Residential lands west of Sailfish Drive, south of Bounty Lane and north of the most southerly portion of Sailfish Drive to promote the water-oriented character of the River and compatibility with adjacent residential properties, to ensure protection of view corridors of the River and the tree canopy in the Front Street Area, and to preserve the historic setting and unique character of this area, including, but not limited to, the scenic roads of Beach Street and Sailfish Drive. Dry boat storage facilities shall be prohibited within this overlay district. Petitioners argue that the prohibition against dry boat storage facilities in Policy 4.1.5 conflicts with the MPP adopted by reference in the Town Plan because the MPP expresses a preference for dry slips over wet slips. The MPP includes a Boat Facility Siting Plan, which contains requirements that must be met for new or expanded marina facilities. The Plan requires the Town to place a priority on the development of boat slip capacity at or south of Ponce de Leon Inlet, to encourage marinas to include both wet slips and dry slips, and to "utilize dry storage to the fullest extent possible in addition to wet slips." The Boat Facility Siting Plan includes best management practices ("BMPs"). One of these BMPs is "Use of upland dry storage shall take precedence over the creation of new wet slips." The prohibition against dry boat storage facilities in the ROD will likely reduce the number of boats launched in the ROD because fewer boats can be accomodated in wetslips than in upland dry boat storage facilities.2/ This proposition was not rebutted by Petitioners. A major objective of the MPP is to reduce manatee injuries and deaths due to collisions with boats. The fewer boats, the fewer potential collisions with manatees. Therefore, the effect of the prohibition against dry boat storage facilities in the ROD is consistent with the objectives of the MPP. Dry boat storage facilities are allowed elsewhere in the Town. The design standards and BMPs in the MPP are described as permitting requirements, not as zoning or land use restrictions. The MPP does not state that all of its design standards and BMPs must be reflected in every permit issued by the Town, County, or State. It does not require, for example, that every marina must have more dry slips than wet slips. The MPP acknowledges that marina sites must conform to local land use and zoning regulations that affect the construction of new wet and dry slips. Under the Policy 4.1.5, utilizing dry storage to the fullest extent possible in the ROD means allowing upland storage of boats on trailers and boat stands in conjunction with boatyard operations. Petitioners also contend that Policy 4.1.5 is not supported by relevant and appropriate data and an analysis by the Town. The prohibition against dry boat storage facilities in the ROD is supported by data and analysis that shows that the noise, fumes, traffic, scale, and appearance of dry boat storage facilities is incompatible with residential uses and with scenic, historic, and natural resources nearby. Petitioners showed that some of the same incompatibility factors exist in other Riverfront Commercial areas, but the factors are not as numerous and pronounced as they are in the ROD. FLUE Policy 1.2.2(g) Petitioners challenge FLUE Policy 1.2.2(g), which limits the floor area for buildings within the Riverfront Commercial District (including the ROD) to 5,000 square feet. Petitioners argue that this limit is in conflict with CME Policy 1.6.6, which requires the Town to adopt and maintain a boat slip allocation program pursuant to which the Town made an allocation of 213 dry slips to Petitioners' property. As discussed in the Conclusions of Law, this argument cannot be raised in this proceeding because the 5,000 square- foot limit was already in the Town Plan before the 2008 Amendment. Petitioners argue that the floor area limit is subject to compliance review in this proceeding because its effect has been substantially altered by new provisions in the 2008 Amendment. The 2008 Amendment added a floor area ratio (gross floor area of buildings divided by upland lot area) limit of 35 percent for Riverfront Commercial, and an increase in floor area up to 10,000 square feet is made possible in a new Planned Waterfront Development District. However, these and other changes in the 2008 Amendment do not alter the fundamental effect of the existing floor area limit. The Town has adopted a boat slip allocation program as required by CME Policy 1.6.6. The allocation of 213 dry slips to Petitioners' property is not required by Policy 1.6.6 or by any other policy in the Town Plan. Petitioners cannot base a claim of internal inconsistency on matters that are external to the Town Plan.3/ Even if the floor area limit in FLUE Policy 1.1.1(g) is subject to compliance review, it is not inconsistent with the MPP for the same reasons that the prohibition of dry boat storage facilities in FLUE Policy 1.4.5 is not inconsistent with the MPP. FLUE Policy 4.2.4 Policy 4.2.4 of the 2008 Amendment states that, in developing design standards for a new Planned Waterfront Development District, limited exceptions might be allowed to the floor area limit of 5,000 square feet, up to 10,000 square feet, but this exception will not apply to dry boat storage facilities. No Planned Waterfront Development District has yet been created in the Town. Despite Petitioners' objection to the 5,000 square- foot floor area limit generally applicable in Riverfront Commercial, Petitioners argue that there is no data and analysis to support the Town's allowance for an increase in the floor area limit to 10,000 square feet in a Planned Waterfront Development District. The knowledge of what a 5,000 square foot or a 10,000 square foot building looks like is all the data needed to set a limit based on scale. CME Policy 1.6.6 CME Policy 1.6.6 of the 2008 Amendment states: The Town shall maintain and enforce its boat slip allocation program. This program shall provide for equitable allocations of new wet and dry slips. Upland slips may be permitted under this allocation program if they can meet the requirements of the Comprehensive Town and the Town Codes. Upland/dry slips development shall be balanced against other community policies, including neighborhood compatibility and visual impacts. Dry slips shall not take precedence over wet slips based solely on environmental concerns. Petitioners contend that Policy 1.6.6 conflicts with the building size limitations in FLUE Policies 1.2.2(g) and 4.2.4 and with the prohibition against dry boat storage facilities in FLUE Policy 4.1.5 because the size limits and prohibition do not allow for the balancing called for in Policy 1.6.6. Petitioners are interpreting the policy more literally than the Town. Things are not going to be placed on scales and made to balance in the middle. The Town interprets the policy to direct the Town to consider competing policies according to their relative importance. In Riverfront Commercial areas other than the ROD, there can be combinations of wet and dry slips, including dry boat storage facilities, but the floor area limit of 5,000 square feet is a "community policy" that will also apply to affect the outcome of the balancing. In the ROD, the prohibition against dry boat storage facilities is another community policy that must be applied. The Town has established a community policy to prohibit dry boat storage facilities in the ROD because the Town has determined that such facilities do not harmonize with nearby residential uses and scenic, historic, and natural resources. Data and analysis support this determination. Although Petitioners got a Town witness to testify that a prohibition does not allow for balancing, the record shows that the Town gives no weight to the desirability of dry boat storage facilities in the ROD and some weight to the desirability of wet slips, so that the scales always tip in favor of wet slips and for boats on trailers or boat stands in a boatyard. Petitioners contend that the statement in FLUE Policy 1.6.6 that "Dry slips shall not take precedence over wet slips based solely on environmental concerns," is directly in conflict with the MPP, because the MPP states a preference for dry slips based specifically on environmental concerns (manatees). However, the meaning of the policy statement is that environmental concerns, alone, will not determine how many dry slips are allowed. Other concerns will be taken into account in determining how many dry slips are allowed. That is not inconsistent with the MPP. Recreational and Working Waterfronts Petitioners contend that the floor area limit in FLUE Policy 1.2.2(g), the prohibition against dry boat storage facilities in FLUE Policy 4.1.5, and the floor area limit for dry storage facilities in FLUE Policy 4.2.4 are inconsistent with section 163.3177(6)(a)3.c., which requires a FLUE to include criteria to "[e]ncourage preservation of recreational and commercial working waterfronts for water-dependent uses in coastal communities." The term "recreational and commercial working waterfronts," is defined in section 342.201(2)(b): "Recreational and commercial working waterfront" means parcel or parcels of real property that provide access for water- dependent commercial activities or provide access to the public to the navigable waters of the state. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water-dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial, research, or governmental vessels. These facilities include docks, wharfs, lifts, wet and dry marinas, boat ramps, boat hauling and repair facilities, commercial fishing facilities, boat construction facilities, and other support structures over the water. There is no current use of Petitioners' property that is prohibited by the challenged amendments. In other words, Petitioners' working waterfront is preserved. To the extent section 163.3177(6)(a)3.c. should be interpreted more broadly to encourage not only preservation, but also economic vitality through further development and redevelopment of waterfronts, the Town has adopted FLUE criteria to encourage their development and redevelopment. The floor area limit and the prohibition against dry boat storage facilities in the ROD do not prevent Petitioners from further developing their working waterfront to add or expand uses. Evaluation and Appraisal Petitioners challenge FLUE Policies 1.2.2(g) and 4.2.4 and CME Policy 1.6.6 as constituting a failure of the Town to update its plan to address the changes needed as identified in the Town's Evaluation and Assessment Report ("EAR"). Petitioners failed to prove that the Town did not make the changes identified in the EAR. Summary Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment create internal inconsistency in the Town Plan. Petitioners failed to prove that the 2008 Amendment or the 2010 Amendment is not supported by relevant data and analysis. Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment is not in compliance.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the plan amendments adopted by Town Ordinances 2008-01 and 2010-09 are in compliance. DONE AND ENTERED this 20th day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2012.
Findings Of Fact On September 9, 1983, Intervenor, Jacksonville Port Authority (JPA), made application to Respondent, Department of Environmental Regulation (DER), for a dredge and fill permit and water quality certification, to construct a commercial docking facility on the west channel of Blount Island, and to dredge material adjacent to the proposed dock for a navigation channel. JPA is a body-politic and corporate operating under the authority of Chapter 63-1447, Laws of Florida. It was expressly created for the public purpose of constructing, developing and operating marine and airport terminals in Jacksonville, Florida. Blount Island is a spoil island comprised of approximately 800 acres, and lies in the St. Johns River, at Jacksonville, Florida. In 1964 the island was deeded by the State of Florida to the JPA for the purpose of constructing a port. To date, approximately 40 percent of the island has been developed. There are 4,300 feet of dock on the main channel and one dock under construction on the west channel. Over two and a half million tons of cargo presently pass through the Blount Island terminal each year. The permit, if granted, would allow JPA to construct a "T" shaped docking facility on the northwest shoreline of Blount Island. The pier would be 59 feet wide and extend 250 feet from the shoreline toward the west channel. The pier would terminate with a "T" head, 70 feet wide and 200 feet long. Associated mooring and bresting dolphins connected to a 1,500 foot catwalk would be constructed parallel to, and shoreward of, the "T" head. JPA proposes to construct the facility on open concrete piles. No fueling or toilet facilities will be constructed on the pier. The proposed facility is graphically illustrated by the attached excerpt from Intervenor's Exhibit 1. The permit would also allow the placement of riprap along the shoreline adjacent to the facility and landward of the Mean Highwater (MH) line, and the dredging of approximately 35,000 cubic yards of material to provide a 126 foot by 2,000 foot access channel, with a depth of -30 feet Mean Sea Level, to the facility from the existing west channel. The proposed facility, a roll-on/roll-off dock (RO-RO dock) would accommodate two deep water vessels at any one time. The vessels would moor stern to the dock, and containerized cargo would be loaded or unloaded from the ship's rear unloading ramp by trucks towing the wheeled containers. The facility, and associated water runoff, will not pose a water quality problem. On April 9, 1984 DER issued its notice of intent to grant the permit to JPA. A timely request for hearing, pursuant to Section 120.57, Fla. Stat., was filed by Petitioner. JPA proposes to dredge the subject channel by using a hydraulic suction dredge. The dredge would pump a slurry of water and the dredge material through a pipeline to the dredge spoil disposal area on the island. The dredge would act as a vacuum cleaner. As the materials were dislodged from the bottom, they would be immediately sucked into the dredge pipe where they would remain until they were ejected at the spoil site. Samples of the materials to be dredged establish that they are nontoxic and consist of relatively clean silky sand. Because of the sand's particle size, settlement time and chemical constituents, the dredge materials will pose no water quality problems. JPA proposes to dispose of the spoil materials at an existing spoil disposal site on Blount Island. The disposal area consists of two settlement ponds of different elevations, connected by throttling pipes. The dredge materials will be deposited in the upper pond and over the course of two and a half days the materials will settle, and the waters will be slowly returned to the St. Johns River. Turbidity at the point of discharge will not exceed the background. The shoreline area immediately adjacent to the proposed dock contains a zone of tidal shoreline marsh varying in width from 15 to 60 feet. This area will not be disturbed. No submerged vegetation exists. While some benthic organisms will be eliminated during the dredging, the area will quickly recolonize. No clam or oyster beds exist in the vicinity of the project. Petitioner expressed her personal concern about the potential impact of the proposed facility on the manatee. Although manatee have in the past been sighted in the west channel, there was no credible evidence that they currently frequent the area or that the construction and operation of the facility will impact adversely on them. Petitioner further expressed concern that, if not properly managed, the spoil disposal site might be a source of particulate matter (dust)--air pollution. However, JPA's Blount Island operation is not a complex air source, and the disposal site, if properly managed, will not be a source of particulate matter. JPA has agreed to properly manage the disposal site.
