Findings Of Fact D.S.I. Forms, Inc. is a for-profit corporation with facilities in Palatka, Florida. It is the owner of a river- front house known as the "DSI Lodge," which is the location of the boat dock at issue here. The DSI Lodge has an existing boat dock similar to those of other waterfront homes in the area along this section of St. Johns River, which is a Class III Florida Water.1 The area is predominantly single family residential, but is not so restricted by zoning ordinance. The DSI Lodge is used as a weekend and holiday retreat by the owner of D.S.I. Forms, Inc., who resides in Atlanta, Georgia, and by his business and personal guests. Although the DSI Lodge has a business character, there is no charge to guests for using lodge or dock facilities. The proposed DSI dock extension would add a two-boat covered slip measuring 20 by 22 feet to the end of the existing dock. Since DSI only seeks mooring facilities for one additional boat,2 it has agreed with the Department of Natural Resources (DNR) to remove its inside boat slip. Although DNR was not a party to this proceeding, the Applicant's stated intent to remove a portion of the existing dock should be reflected in any permit issued by DER. The existing dock is approximately 700 square feet in surface area. With the application as now framed, the total surface area would exceed 1,100 square feet. However, with removal of the inside slip, the proposed dock area would apparently increase to less than 1,000 square feet, and thus may be exempt from DER permitting altogether.3 Petitioners presented a series of grievances concerning use of the DSI Lodge by inconsiderate guests. These complaints included discharging a rifle and fireworks, high speed operation of power boats adjacent to the river's edge (bulkhead) and congestion of boating activity resulting from numerous guests using the DSI facilities during holiday periods. The careless or congested boating activity may affect the quality of life for DSI Lodge neighbors and endanger wildlife such as manatee which sometimes inhabit these waters. However, it was not shown that the proposed dock extension would affect these environmental considerations since D.S.I. Forms, Inc. already owns and operates the boat which would be accommodated by the additional slip (see footnote 2 above). Further, the testimony of the DER field representative established that the presence of the extended dock, as well as its construction, would not degrade water quality.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order issuing the proposed permit to D.S.I. Forms, Inc. with an added condition requiring removal of the existing inside boat-slip. DONE and ENTERED this 26th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
Findings Of Fact The Petitioners, Alexander Brest Trust and Commodores Point Terminal Corporation, have respectively filed applications with The Department of Natural Resources, pursuant to Section 253.129, Florida Statutes, and the "Butler Act," Chapter 8537, Laws of Florida, 1921, for issuance of "disclaimers" to certain lands situate in Duval County, Florida and the City of Jacksonville, consisting of water bottoms of the St. Johns River lying adjacent and contiguous to the Petitioner's upland, bulk-headed property. The Respondent, DNR, is an agency of the State of Florida charged with implementation of Chapter 253, Florida Statutes relating to sovereign submerged lands. It serves as the staff to the Board of Trustees of the Internal Improvement Trust Fund, pursuant to Section 253.002, Florida Statutes. The department has the authority to process applications for disclaimers to state lands under the provisions of Section 253.129, Florida Statutes and Section 18- 21.014, Florida Administrative Code. The Alexander Brest Trust is the owner of a parcel of property adjacent to the St. Johns River, located in Jacksonville, Duval County, Florida. That parcel was bulkheaded and backfilled during the period from 1915 to 1917. Commodores Point Terminal Corporation is the owner of a parcel of land adjacent to the St. Johns River located in Jacksonville, Duval County, Florida, which parcel was also bulkheaded and backfilled during the period from 1915 to 1917. The two parcels are contiguous and adjacent. Prior to the bulkheading and backfiling by Brest and CPTC's predecessors in title, the area landward of the bulkhead included submerged lands with water depths of up to eighteen feet below mean high water. The material used by the predecessors-in-title to backfill behind the bulkhead was obtained by dredging an area waterward of that bulkhead. The Respondent has already issued disclaimers of title for the area of land enclosed by and landward of the bulkhead. The Petitioners are the current owners of the upland properties which are contiguous to the subject submerged property and their predecessors in title owned the property prior to 1915. The Respondent has initially elected to deny the applications as to the subject property, on the basis that the dredging activity took place on numerous occasions which demonstrated that the dredging was not a "permanent improvement" within the meaning of the above-cited provisions of law. Moreover, the department maintains that there is no legal requirement that disclaimers be given for "maintenance dredging" of submerged lands, on the theory that such maintenance dredging might constitute a permanent improvement for purposes of the "Butler Act." The department states that this is particularly true when the submerged lands in question are seaward of an existing "bulkhead line." The subject property, including the uplands, were undeveloped as of 1856, the date of the passage of the Riparian Act of 1856," Chapter 791, Laws of Florida (1856). During the year 1910, the Secretary of War, (predecessor to the United States Army Corps of Engineers (Corps), recommended to Congress additional improvements to the Jacksonville Harbor based upon a finding that "the terminal facilities in Jacksonville are rapidly being developed to keep pace with the increased facilities afforded navigation by the deepened channel and the rapidly increasing business of the city." The Secretary of War stated that "sufficient undeveloped waterfront still remains for the establishment or betterment of terminal facilities for some time to come." The Secretary of War opined that the present and prospective commerce of that port demanded an improved channel and that the benefits to be derived would justify the cost of the thirty foot channel to be dredged. In due course, the Corps dredged the so called "Arlington Cut" channel in 1910 or thereabouts. It was located approximately 2,000 feet off-shore from the CPTC parcel and did not continue around Commodores Point and the bend in the river, so that it did not lie in a south or southwesterly direction off the Brest property at that time. Thereafter, and sometime in the mid-1930's, another channel was excavated by the Corps, the so called "terminal channel," which is west of the Arlington Cut and does lie off shore of the Brest property. Some sort of channel existed in the river prior to 1910, however, as the Secretary of War's statement contemplated an "improved channel" or a "deepened channel" and also referenced that terminal facilities in Jacksonville were being developed, and referred to the rapidly increasing business of the city and generally to the already ongoing commerce of that port. The St. Johns River would of course have its own natural channel consisting in essence of a continuous line parallel with the natural course of the river, and in the river, characterized by its greatest depths. The United States Army Corps of Engineers, as a matter of policy, requires local port operators to provide and maintain adequate terminal facilities for commerce before the Corps will recommend deepening of federally maintained channels. This would include a requirement that the local port operators deepen their own berthing channels where necessary to receive the benefit of the federal channel improvements. In 1914, three Jacksonville families, the Cummers, Coachmans and Taliaferros owned the undeveloped lands in question, which later became known as the Commodores Point Terminal. On April 9, 1915, these three families together organized and chartered a corporation named as "Commodores Point Terminal Company." The corporation was organized in order to maintain, own and operate "warehouses, storage yards, terminals, elevators, presses, tanks, scales and other devices for loading and unloading merchandise; wharves, docks, vessels, boats and water craft of all kind for the purpose of furnishing terminal storage and forwarding facilities and for receiving, retaining, caring for and delivering every class of movable property." The Articles of Incorporation also announce the purpose of carrying on the business of ship owners and agents for lines of ships and other water craft, performing towing and lighterage, to, and generally dealing in, all articles suitable for the construction, equipment and operation of marine craft of every kind and the loading, unloading and discharging of such water craft; the design, construction and repair of vessels, ships, boats and water craft and the maintenance of drydocks, wharves, piers and all structures in connection with the warehousing, forwarding and shipping business. The respective lands of these families, depicted in Petitioner's exhibit 4, were then conveyed to the new corporation. During 1914 and 1915, the corporation retained engineers who prepared detailed plans and specifications for development of the lands in question into modern port facilities. The construction plans, dated 1914, called for the construction of a concrete and steel bulkhead system along the line depicted on the plans in Petitioner's exhibit 3. Those plans identified the pre-development shoreline and prevailing water depths prior to the bulkheading and backfilling of the uplands. The 1914 plans also identified the location of certain rock strata located in the submerged lands beneath the bulkhead line. See Petitioner's exhibit 3. The original contour of the river bottom prior to construction of the steel bulkhead is shown by Petitioner's exhibit 4 consisting of the original 1915 construction drawings showing the "strata on line of bulkhead." The 1915 plans then clearly show that the berthing channels were excavated to a depth of thirty feet along side of the bulkhead. Those plans also clearly identify the length of the new bulkhead and the corresponding length of the berthing channels. The various sections of bulkhead exceed 5,000 feet in length. In excess of 4,200 feet of that bulkhead length is embedded in the underlying rock strata indicated on the plans. Construction of the bulkhead and the corresponding berthing channels parallel to it, required excavation of considerable amounts of rock, in addition to softer materials such as sand, clay and silt. Silt actually constituted a very small proportion of the material originally excavated from the berthing channels in front of the bulkhead. By April 11, 1916, as shown by the corporate minutes for that date, construction for the terminal facility was well underway. The corporation by that date had already invested approximately $127,000.00 in bulkheading for the property. The filling of the upland portion behind the bulkhead area was getting underway, but rock removal had become a problem. Those minutes contain an estimate of costs of $35,000.00 for six months effort at removing rock and noted difficulty in placing support beams for the bulkhead because of a second strata of hard rock that was encountered which would require blasting. These same corporate minutes authorized a contract for removing the rock at a cost of 88 cents per cubic yard, compared with 8 cents per cubic yard being paid for dredging of softer material. Thus it can be seen that removing rock during that time cost approximately eleven times the cost of removing the same quantity of softer fill material. Corporate minutes of a board meeting during 1916 show that, as of October 1916, a fifteen hundred and ninety foot section of bulkhead had required the excavation of eighty-three thousand six hundred and ninety four cubic yards of sand compared to twenty eight thousand nine hundred eighteen cubic yards of rock. The rock therefore constituted in excess of twenty-five percent of the materials excavated out of that major section of the berthing channels. From November 10, 1915, through March 2, 1917, approximately 1,278,539 cubic yards of fill material had been excavated at a total cost of $91,465.63. The terminal facility was thus nearing its completed stage at this time with completion of extensive upland development, in terms of wharves and other terminal facilities, in addition to the bulkhead and berthing channels. The terminal facility was thus substantially completed by 1920 and in operation. Improvements to the berthing channels continued throughout the 1920's and wharf houses were constructed to house and store ship cargos. During the 1920's and 1930's, the terminal facility was engaged in a thriving shipping business for incoming and outgoing cargos. This fact is illustrated by photographs taken during 1932 of the terminal facility, admitted into evidence as Petitioner's exhibit 20, which demonstrate the channels, bulkheads, platforms, wharf houses, railroad tracks and vessels forming a part of the facility and its active commercial business at this time. These photographs depict deep draft ships drawing between 20 and 30 feet of water moored in the berthing channels along side the bulkhead and wharves. The photographs also depict certain large boulders which had been removed from the berthing channels and are representative of the rock required to be excavated to install the channels. Additionally, photographs, dated 1921, admitted into evidence show extensive commercial activity by deep draft ocean-going vessels using the berthing channels shortly after the terminal facility was completed and therefore shortly after the initial dredging of the berthing channels. Mr. Alexander Brest testified that, beginning in 1926, he maintained an office approximately 150 feet from the Commodores Point bulkhead. He established that the vessels depicted in the photographs, in evidence in Petitioner's exhibit 20, are representative of the types of ships that utilized the terminal facilities and the berthing channels during the years involved. Sometime around 1935 or possibly shortly prior thereto, the Corps of Engineers relocated the "federal channel" away from the Arlington Cut and routed it to run directly along the north side of the Commodores Point Terminal facility, the so called "terminal channel." Based upon the policy described by Mr. Sam Isenberg, a longtime employee of the Corps, to the effect that adequate terminal facilities must exist before federal channel improvements will be authorized, a reasonable inference is drawn from these facts that the Commodores Point Terminal facility constituted a major port terminal facility by 1935 for ocean-going traffic, sufficient for the government to justify re-location and improvement of its channel. In 1938 the corporation was maintaining a depth of 30 feet of water in front of its bulkhead and in the berthing channels in order to continue to accommodate ocean-going commerce. By that date, the terminal facility had been expanded to also include four wharf houses beside the railroad tracks and related platforms. The significance of the Commodores Point Terminal facility to commerce continued into the 1940's and further federal improvements were made to the terminal channel excavating it to a depth of 34 feet. The federal improvements would not have been authorized in the absence of adequate terminal facilities such as those at Commodores Point, including the fact that during the 1940's a portion of the Commodores Point property was being used for government operated shipyard building "liberty ships." It Is also established that by the early 1940's, the federal channel in question followed the entire bulkhead line from the north end of Commodores Point Terminal all the way around the point to the portion of river front now owned by the Alexander Brest Trust. All the improvements regarding the channels and their access to the federal channel were constructed to serve the upland terminal facility improvements as, essentially, a unified commercial port facility. See Petitioner's exhibit 14C-1 and 2 in evidence. The uplands presently owned by Commodores Point Terminal Corporation and the Alexander Brest Trust continue to be utilized for the berthing of commercial vessels and attendant commerce to this day, although their business has declined somewhat since the 1950's, due to increased competition from the Jacksonville Port Authority commercial facilities for ocean-going ships. Nevertheless, ocean-going vessels drawing in excess of thirty feet of water continue to use the facility. The terminal facility would be unable to function without the berthing channels as originally dredged and as presently configured. Those channels have permitted the facility to be used to load and unload and otherwise accommodate large ships and tankers for over fifty years on a continuous basis. As shown by the testimony of Mr. Isenberg and the survey dated January 1987, in evidence, the lands for which Petitioners seek the disclaimer are not so wide and extensive as to result, by the disclaimer, if granted, in an interference with navigation and commerce on the St. Johns River. Considerable evidence was introduced as to the distinction in quantity, character and cost between the original excavation dredging of the berthing channels and subsequent maintenance dredging, as that relates to the question of whether the dredging of the channels constituted a permanent improvement to the realty involved. In this connection, Mr. Kreis testified that the most recent maintenance dredging took place in 1986. That involved removal of eighty-five hundred and eighty-seven cubic yards of material. The testimony of Mr. Ray established that maintenance dredging for the Commodores Point berthing channels has averaged approximately 4,000 cubic yards of material per year if it were averaged out over the period of time dating back to 1961. The original dredging for construction of the berthing channels from 1915 to 1917 involved the removal of 1,278,539 cubic yards of material, approximately twenty-five percent of which was solid rock. Thus, the quantity of silt and other soft materials dredged on an annual basis represents only about .3 percent of the original quantity of materials excavated from the channels. Mr. Isenberg and Mr. Ray have considerable experience in the dredging business and explained the significant difference in character, difficulty and costs between the original excavation dredging of the channels, as opposed to mere maintenance dredging. Mr. Isenberg explained that the original dredging of the river channel or the deepening of a the river channel below the previous depth involved removal of rock. This has to be done with a large cutter dredge, which is operated by a large diesel engine. If the rock is very hard, it must be drilled and blasted before the dredge can pick it up. Commonly accepted engineering practice requires removal of rock to slightly over specified depth so that subsequent maintenance dredging operations will not require the use of a rock cutter head and will allow removal of any accumulated silt at a small fraction of the cost of having to use rock cutting equipment. Maintenance dredging thus basically involves only removal of silt and light sands. As established by Mr. Ray, dredging of silt or sand requires only light weight, "standard" type of dredging equipment, however, a special dredge would have to be obtained in order to dredge rock. Samples of rock removed from the berthing channels at Commodores Point, displayed at hearing, revealed that it is a very hard type of "chert." Once such rock is removed from a channel, of course, it does not return and subsequent channel dredging is basically a sweeping operation. It is done as periodic maintenance of the original and already- constructed channel, unless that channel is later required to be deepened. Mr. Lake Ray is a Registered Professional Engineer in the State of Florida, as well as a licensed land surveyor. He has extensive background and training in the field of civil engineering and particularly with respect to the design of port facilities. He has extensive familiarity with the specific property in question. He opined that, based upon his knowledge of dredging and his specific knowledge of the property involved, that the original excavation dredging constituted a permanent improvement to the submerged lands in question. Mr. Alexander Brest is a graduate of M.I.T., with a degree in civil engineering. He has taught as a professor of civil engineering at the University of Florida. He also expressed the opinion that, as of 1947 when he acquired his portion of the property in question, that it had been permanently improved by the prior original dredging or excavation of the berthing channels, as well as the maintenance dredging. The current commercial uses of the Brest property have not required any maintenance dredging since Mr. Brest acquired the property In 1947. This testimony coupled with the "corroborative hearsay" affidavits of Paul Kirkland of Wood Hopkins Contracting Company, Noel Pepper of Pepper's Towing Company and Eugene Hagan, a Florida Registered Professional Engineer, established that the sand, clay and rock removed from the dredged berthing channels resulted in a permanent change in the river bottom. The indentation created by the dredging may fill up with silt, but the silt is easily removed compared to the original dredging process involving sand, clay and rock removal. The initial cut in the river bottom should be considered a permanent improvement to the adjacent marine facility. Once the rock, clay and sand materials are removed the channels are considered cut into the river bottom permanently. Thereafter, one would only expect to do maintenance dredging of easily removed silt and minor traces of sand on a periodic basis, which is what the history of the maintenance of the channels, as indicated in this record, reflects. The opinions of the above-named experts are accepted, based upon the above findings concerning their training, experience and familiarity with the physical characteristics of the lands and waters in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund granting the disclaimer sought by the Petitioners, in the manner and for the reasons found and concluded above. DONE AND ENTERED this 9th of January, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-0378 & 88-0522 Petitioner's Proposed Finding of Fact: 1-24. Accepted. 25-31. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 32-39. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Rejected as constituting discussion of evidence presented and not a finding of fact. 42-48. Accepted. 49. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, which are predicated on direct evidence and not on the hearsay affidavit referenced in this proposed finding of fact. 53-54. Rejected as consisting of a discussion of testimony rather than a proposed finding of fact, and as being immaterial. Respondent's Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as contrary to and subordinate to the Hearing Officer's Findings of Fact on the subject matter, and as being immaterial. 7-8. Accepted. 9-10. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Accepted. 12-13. Accepted, but not for its material import nor as dispositive of pertinent issues in this proceeding. 14-16. Accepted. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter and as not In accordance with the preponderant weight of the evidence, and, to some extent, as immaterial. Rejected as being contrary to the preponderant weight of the evidence. Accepted, but not in itself dispositive of any material issues presented. 21-23. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 24-30. Rejected as immaterial. 31. Rejected as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: J. Michael Lindell, Esquire Suite 620, Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Ross S. Burnaman, Esquire Assistant General Counsel Florida Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399
The Issue The issue in the case is whether the Petitioner should be granted an environmental resource permit and authorization to use sovereign submerged lands for construction of an extension to an existing multi-family residential docking facility.
Findings Of Fact The Petitioner, Bay Oaks Circle Association, Inc., represents the 20 property owners of the Bay Oaks Circle subdivision. Bay Oaks Circle borders on Lemon Bay. Lemon Bay is a Class II Outstanding Florida Water. Lemon Bay is also an aquatic preserve and a designated state "Special Water." The Lemon Bay aquatic preserve is recognized for its water quality and resources. To protect the resources, special standards are applicable to review of permits for aquatic activities. The Petitioner's existing dock was permitted in the 1970's. The dock has four slips and extends approximately 100 to 120 feet from the shoreline into water depths of approximately one to one and a half feet at low tide. The dock attaches to the shoreline from a 45.5-foot wide easement owned by the Petitioner. There is evidence of prop dredging in the existing mooring area. The existing mooring area has little natural value as a water resource. Initially, the proposed dock was to extend another 120 feet (for a total extension of 220-240 feet) into deeper water approximately three to three and a half feet at low tide and would accommodate a mooring area for eight slips. In the area of the proposed dock, most of Lemon Bay is about three and a half feet deep at low tide. The application was subsequently amended to provide an extension of 112 feet for a total length of 199.5 feet, with six boat slips. The final proposal provided for a 104 feet long by three feet wide access walkway. Two 16 feet long by two feet wide "finger" piers would extend from the walkway. The end of the walkway would terminate in a dock platform 8 feet by 20 feet wide. The total square footage of proposed structure over water is 536 square feet. The proposed mooring areas are defined by mooring pilings place into the bay bottom. The applicant seeks a sovereign submerged land lease to permit the preemption of 2,219 square feet of submerged bottom land. Because the proposed dock exceeds 500 square feet in an Outstanding Florida Water, a standard environmental resource permit must be obtained before the proposal can be constructed. Two of the proposed mooring slips are over seagrasses. Additionally, two shallow areas located nearby contain seagrasses. Seagrasses provide the basis of the food chain in the waters. Adverse impacts to seagrass beds negatively affect marine productivity, as well as the fishing and recreational values of the waters. The proposed dock expansion poses a threat to the seagrass beds at the mooring slips and in the shallow areas near the shoreline and to the east of the proposed dock. Although the proposed dock extension does not appear to directly impede a marked navigation channel, review of the bay bottom suggests that boats currently navigate in the proposed mooring area to avoid a shallower nearby shoal. It is likely that the proposed dock expansion would result in diversion of boat traffic into the seagrassed area of the shallower waters. Section 373.414(1), Florida Statutes, sets forth the review criteria used in consideration of a permit application when the proposed activity occurs in an Outstanding Florida Water. The Petitioner offered no evidence to establish that the permitting criteria set forth at Section 373.414(1), Florida Statutes, have been met. The proposed multi-family docking facility requires issuance of a sovereign submerged land lease before the facility can be constructed. Sovereign submerged land leases are reviewed according to the size of the proposed facility and the quality of the lands to be impacted by construction and operation. Submerged land is classified according to resource quality into "Resource Protection Areas (RPA)" to permit appropriate application review. An RPA I is an area of fragile, easily-damaged marine resources such as coral beds or seagrasses, that require the highest level of protection. An RPA II is an area or seagrasses or benthic animals which, while not as fragile as an RPA I, still require substantial protection. An RPA III is an area of sand that contains fewer marine resources than an RPA I or II. The seagrassed areas near the proposed docking facility are classified as an RPA I. The areas near the proposed docking facility contain less seagrass, but have substantial evidence of benthic anumals, and are classified as RPA II. According to the parties, the Petitioner must meet a "ten to one" rule to obtain a permit. In the alternative, the Petitioner may qualify for a lease if the proposed facility does not exceed the maximum square footage permitted for a single- family dock. The ten-to-one criteria provides that the total dock structure may not preempt more than ten times the linear footage of the property owner's shoreline, in which case a lease may be issued. In this case, the shoreline is 45.5 feet, resulting in a permissible preemption of 455 square feet. In this case the applicant proposes to preempt 2,219 square feet. According to the credited testimony of the Respondent’s witness, the single-family dock methodology does not qualify the proposed dock for permitting. Although a number of hypothetical dock proposals were discussed at the hearing, the hypothetical proposals are not included in the permit application. There is no evidence that the agency gave any formal consideration to hypothetical proposals prior to the hearing. At the hearing, the Petitioner proposed that the applicable rules be waived to allow the permit and lease to be issued. Specifically, the Petitioner proposed that the permitting criteria be waived as to dock design and minimum square footage. There is no credible evidence to support waiver of applicable statutes and rules in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying the application for the proposed dock extension filed by the Bay Oaks Circle Association, Inc. DONE AND ENTERED this 16th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1999. COPIES FURNISHED: Barry L. Dasher Bay Oaks Circle Association, Inc. 3075 Bay Oaks Circle Englewood, Florida 34223 Francine M. Ffolkes, Attorney Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard G. Perkins 4005 Bay Oaks Circle Englewood, Florida 34223 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
The Issue The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18. The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat. David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway. The Trustees own the lands lying below the mean high water line of the Matanzas River. The Permit and Lease Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property. Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit. The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls, it is apparent that this was for the purpose of showing interior areas, such as the slips. Although difficult to see, one drawing indicates a doorway on the lower level. The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes. On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property. General Condition (a) of the permit states: All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit. On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the Department permit, which was incorporated into and made a part of the lease.2/ Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence." Paragraph 7 of the lease states in pertinent part: This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining . . . the Lessor's written authorization in the form of a modified lease. Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor." The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71): "Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity. The lease was issued for a term of five years. It expired on January 12, 2009. Enforcement History Respondents began construction of the dock and boathouse in February 2004. A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint. Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure. Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit. Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place." Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection. Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place. Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance. The structure shown in the photographs taken on July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip. The Department did not communicate with Respondents about the July 9, 2004, inspection. The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance." General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations." Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project. On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done. Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection. The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted." Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed." Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse. Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable. It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted. The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure. In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows. On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.” Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view. Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit. On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp. During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.” Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings. On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category - Let's talk." However, the record does not include any explanation of this handwritten comment. Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent. On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower. In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks." The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit. Respondents did not submit an as-built to reflect the final construction of the dock and boathouse. The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent. Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent. Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent. Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting. On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station. Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear. There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait. Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level). The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance Respondents claim that they relied on the Department's representations following the Department's inspections of the construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit. The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent. Respondents presented no evidence to show that similar boathouses have been authorized by Department permit. David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered. The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans. David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department. Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance. Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010.
The Issue The issues in this case involve the status of a private, single-family dock built by the late Edward Neal Imhoof and his widow, Juanette Imhoof, on the Indian River in New Smyrna Beach, Florida.
Findings Of Fact Juanette Imhoof owns and resides on a piece of residential property (Imhoof property) located at 1402 Riverside Drive, New Smyrna Beach, Florida. Mrs. Imhoof's ownership is evidenced by a warranty deed and a quitclaim deed. The warranty deed describes property bordered on the east side by a road named Riverside Drive. East of Riverside Drive is a strip of undeveloped land between Riverside Drive and the water line. Mrs. Imhoof claims this strip of undeveloped land as her riprarian uplands. Her quitclaim deed includes the property described in the warranty deed "together with any and all riparian rights appertaining to or belonging to the above described property." Petitioner, Harris J. Samuels, and his wife, own a piece of property adjacent to the south side of Mrs. Imhoof's claimed riparian uplands. Their lot narrows to approximately 35 feet wide at the river. They have a small dock which extends into the water from their riparian uplands. In the year 2000, Mrs. Imhoof's late husband, Edward Neal Imhoof, contacted DEP Central District Office about obtaining authorization to build a dock on the Imhoofs' riparian uplands. In April of 2000, Mrs. Lisa Prather (f/k/a Lisa Moll), at that time an Environmental Specialist with DEP, visited the Imhoof property in order to do a pre-application site inspection. Following the onsite inspection, Mrs. Prather received an exemption application from Mr. Imhoof on July 12, 2000, which included copies of the Imhoofs' warranty deed and quitclaim deed. The application also included a drawing of the proposed dock. According to the drawing, Mr. Imhoof intended to build his dock on the southern side of the claimed riparian upland. The access pier was depicted mostly parallel to and approximately ten feet from Petitioner's northern property line. Near the terminal platform, the access pier angled to the northeast, and the platform was centered on and perpendicular to the access pier. According to Florida Administrative Code Rule 18- 21.004, a dock must be set back "a minimum of 25 feet inside the applicant's riparian rights lines" unless it qualifies for a waiver. In order to qualify for a waiver, DEP must determine that locating the dock within 25 feet of the riparian rights lines will minimize or avoid impacts to natural resources. See Conclusion of Law 26, infra. However, Mrs. Prather testified that, at the time she received this application, it was not DEP's practice to consider the 25-foot setback requirement when granting exemptions. Subsequently, DEP's legal counsel advised her to consider such waivers when granting exemptions. Mrs. Prather relied on the quitclaim deed and the survey included in the application to determine that the Imhoof property had sufficient riparian upland interest to qualify for an exemption and BOT consent of use. In addition to these materials, Mrs. Prather relied on the Property Appraiser's records, which indicated that there are riparian rights attached to Lot 2, which was owned by Mr. and Mrs. Imhoof. In addition, almost every other similarly-situated property on Riverside Drive to the north of the Imhoofs' property has a dock built on the strip of land between Riverside Drive and the water line. Based on Mrs. Prather's review, DEP granted Mr. Imhoof's exemption application. On August 8, 2000, DEP issued Edward Neal Imhoof a Notice of Exemption for construction of a 628 square foot private, single-family dock on the Indian River in New Smyrna Beach. The Notice of Exemption informed Mr. Imhoof, among other things, that his proposed dock was "exempt from the need for an Environmental Resource Permit (ERP) under Rule 40C-4.051(11)(g), Florida Administrative Code." However, it also informed Mr. Imhoof that its regulatory exemption "determination shall expire after one year." In a separate authorization, it also informed him, that his proposed dock "qualifies for a consent to use sovereign, submerged lands" from the BOT. In relation to both authorizations, it also informed Mr. Imhoof,: "If you change the project from what you submitted, the authorization(s) granted may no longer be valid at the time of commencement of the project. Please contact us prior to beginning your project if you wish to make any changes." (Emphasis in original.) Construction on the dock in question did not commence within a year of the exemption determination. The evidence was confusing, but it appears that the Imhoofs may have sought a dock permit from the City of New Smyrna Beach during the summer of 2002, and that a question arose as to whether DEP would allow the Imhoofs to build their dock within ten feet from Petitioner's northern property line.5 On July 22, 2002, Mrs. Prather stated in an email to an individual named Seann Smith, who was not further identified by the evidence: "The Department is authorized to waive any setback waiver [sic] if it [sic] the proposed location will have less environmental impact. Therefore, Mr. Imhoof is authorized to construct his dock 10 feet from his property line." There was no other action from DEP waiving the setback requirement; nor was there any action to extend the duration of the regulatory exemption. Construction of the Imhoofs' dock did not begin until approximately April of 2003. On May 5, 2003, Mr. Samuels filed a complaint with DEP regarding the proximity of the Imhoof dock to his own. DEP also received a complaint from the City concerning the dock and trimming of mangroves. Also in May of 2003, Mrs. Prather received a telephone call from Chip Steele, an environmental consultant for the Imhoofs, who inquired as to setback requirements and requested a waiver. It appears that on May 23, 2003, Mr. Imhoof emailed a letter to Mrs. Prather at DEP requesting a waiver from the 25- foot setback requirement for the Imhoofs, who inquired as to a waiver from the setback requirement. It appears that he attached a copy of the email from Mrs. Prather to Seann Smith dated July 22, 2002.6 As further support for the granting of the waiver, Mr. Steele sent Mrs. Prather a photo of the property and a letter outlining his analysis for granting of a waiver of the 25-foot setback requirement, as well as a proposed location for the dock. Based on this information, as well as her previous site inspection in April of 2000, Mrs. Prather apparently confirmed that the dock was eligible for a waiver to the 25-foot setback requirement, and construction commenced. There was no evidence of any additional writing from Mrs. Prather or DEP determining that the 25-foot setback was waived. The dock, as built, is not in the same place as proposed in the materials previously provided by Mr. Imhoof and Mr. Steele. Instead, the access pier proceeded for most of its length, but not all the way through the mangrove fringe, approximately 11 feet from Petitioner's northern property line (as previously proposed). Then, earlier than previously proposed, and still within the mangrove fringe, the access pier angled to the northeast for a short distance, taking it farther away from Petitioner's northern property line (but apparently still within 25 feet of the property line), before angling back to the east and then to the southeast for short distances before terminating in the platform, which extended south towards the riparian rights line. As built, the platform of the Imhoofs' dock is approximately 17 feet north of the platform of Petitioner's dock. Mrs. Prather testified that the dock, as built, still falls within the parameters to be granted a waiver from the 25-foot setback requirement. Mrs. Prather testified that the first 80 feet of the access pier (where it parallels Petitioner's northern property line) is devoid of mangroves, whereas the remainder of the property was at least 85 percent covered with mangroves. Therefore, placing the dock on the south side would result in less destruction of natural vegetation and less loss of habitat. Aligning the dock wholly or partially through the middle of the lot, which was one of Petitioner's alternative proposals, would be more detrimental to the environment because it would bisect the healthy mangrove fringe. In addition, the dock, as built, has been elevated to minimize impact to the vegetation from shading, at a greater expense to the Imhoofs, even though it is not required to be. Mrs. Prather testified that the as-built location avoids or minimizes environmental impacts due to shading, edge effect, and diversity. Carolyn Schultz, a biologist, confirmed the testimony of Mrs. Prather. Mrs. Schultz testified that, on the southern boundary of the claimed riparian uplands, where the access pier was placed, fill material from Petitioner's property extends onto the Imhoofs' claimed riparian upland and has created an edge effect. As a result, this area already has been disturbed, and placement of the dock in that location, as opposed to the less impacted area elsewhere on the Imhoofs' claimed riparian uplands, would be less of an environmental impact. Petitioner presented an expert biologist, Joe H. Young, to testify regarding the placement of the Imhoof dock. It was Mr. Young's opinion that placing the dock farther to the north side of the property would result in less environmental impact. Mr. Young proposed angling the access pier to the northeast sooner (i.e., closer to Riverside Drive, namely approximately 112 feet from the road), and continuing it in that direction until termination in the platform, which would be much farther north (and farther away from the riparian rights line and Petitioner's dock) than as-built. Mr. Young calculated that approximately 30 square feet less mangrove fringe would be impacted under his proposal. (It appears that his proposed alternative dock also would still not meet the 25-foot setback requirement.) However, Mr. Young did not perform any type of percentage-of-cover or qualitative analysis. The Imhoofs' expert, Mrs. Schultz, performed such an analysis and found that the mangrove fringe was thicker and healthier (primarily, more diverse) where Mr. Young proposed that the dock be built. Even disregarding relative health of the mangrove fringe in the two locations, when she factored in percentage-of-cover, Mrs. Schultz found that 5 square feet less mangrove vegetation was impacted by the Imhoofs than would be under Mr. Young's proposal. Petitioner did not rebut the testimony of the opposing experts that the as-built location was preferred because of factors such as diversity, edge effect, and shading. The evidence is clear that, waterward of the mangrove fringe, there is no significant difference in natural resources to be impacted by placement of the Imhoofs' dock. In other words, placement of the terminal platform in the as- built configuration is not necessary to avoid or minimize adverse impacts to natural resources. Extending the platform to the north, away from the riparian rights line and Petitioner's dock, would be just as environmentally-friendly. Petitioner testified that the location of Mrs. Imhoof's dock, approximately 17 feet to the north of his dock, interferes with his riparian rights and the use of his dock for kayaks and sailboats. As for riparian rights, Petitioner accepted the riparian rights lines drawn by Respondents for purposes of this case. Those riparian rights lines indicate not only that Mrs. Imhoof's dock does not interfere with Petitioner's riparian rights but that Petitioner's dock actually interferes with Mrs. Imhoof's claimed riparian rights. As for launching and docking kayaks and sailboats, the location of Mrs. Imhoof's dock interferes with Petitioner to some degree, especially in certain current and wind conditions. Some degree of such interference may not be unreasonable, especially given the location of Petitioner's dock within Mrs. Imhoof's claimed riparian rights lines. But there was no valid, natural resource-based reason for the Imhoofs to construct the platform of their dock so as to extend south towards the riparian rights line and Petitioner's dock. The DEP representative who took Petitioner's complaint on May 5, 2003, wrote on the complaint form: "Mr. Imhoof constructed dock longer and closer to his dock than we authorized in our exemption of August 2000." The "we" appears to refer to DEP, not Petitioner. It appears from the evidence that Petitioner first learned of the existence of the Imhoofs' exemption in early May 2003, when he went to the City of New Smyrna Beach to complain about the location of the dock being constructed by the Imhoofs. However, on its face, the exemption appeared to have expired well before construction began. On May 20, 2003, DEP conducted a site investigation of the complaints against the Imhoofs. After the site visit, DEP representatives spoke to Petitioner and told him that the Imhoofs' dock was exempt and had a waiver from the setback requirement. On or about May 22, 2003, Mr. Samuels went to DEP's Central Office and obtained another copy of the expired exemption. On July 1, 2003, Mr. Samuels mailed DEP his Amended Petition. It was not clear from the evidence whether there was an earlier petition or, if so, when it was filed. Respondents did not file a motion to dismiss the Amended Petition as being untimely; however, their PRO raised this issue. It was not clear from the Amended Petition whether Petitioner was requesting an administrative hearing on proposed agency action (to determine de novo whether Mr. Imhoof's proposed dock should be exempt), or whether he was requesting revocation of the exemption for construction not consistent with the exemption. The Amended Petition did not articulate that the exemption expired before construction, or take the position that Mr. Imhoof's dock was constructed without the benefit of a valid regulatory exemption (or permit) and BOT consent of use.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mrs. Imhoof: is entitled to a regulatory exemption for her dock; and should be given consent of use by the BOT for her dock, so long as the terminal platform extends to the north, away from the riparian rights line and Petitioner's dock. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S --- J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2004.
The Issue The issues are whether Keith Rockman's construction of a dock and other structures on Choctawhatchee Bay in Fort Walton Beach, Florida, is exempt from Wetland Resource Permit requirements, and whether authorization to use sovereign submerged lands for the project should be given.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On December 19, 2005, Mr. Rockman, who lives at 325 Brooks Street, Southeast, Fort Walton Beach, Florida, filed an application with the Department's Northwest District Office in Pensacola requesting authorization to construct a platform seven feet wide by eight feet long; an access pier three feet long; another access pier four feet wide by forty-five feet long; four mooring pilings outside the slip; and ten mooring pilings inside the proposed slip, totaling 371 square feet. The application indicated that the proposed construction activities would take place in the Choctawhatchee Bay, a Class III water of the State, on which Mr. Rockman's property fronts. (This waterbody is more commonly known as the Santa Rosa Sound or the Intracoastal Waterway.) The property already had an existing 25-foot dock when Mr. Rockman purchased the property sometime in 2005; however, because Mr. Rockman wishes to dock a larger boat than the prior owner, he has requested authorization to build the structures in issue here. Based upon the information supplied by the applicant, Diana Athnos, an Environmental Manager with the Northwest District Office, advised Mr. Rockman by letter dated January 31, 2006, that the Department had "determined that [his] project is exempted from [the Department's] Wetland Resource Permit requirements by Rule 62-312.050(1)(d), Florida Administrative Code." The letter also stated that the "letter is your authorization to use sovereign submerged land (if applicable) for the construction of your project, as required by Chapter 253.77, Florida Statutes and Chapter 18-21, F.A.C." After Department approval was obtained, Mr. Rockman completed construction of the project. Mr. Rockman elected not to publish notice of the Department's decision or provide notice by certified mail to specific individuals. Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. Petitioner, who lives next door to Mr. Rockman, learned about the Department's decision in a telephone call with the Northwest District Office on March 8, 2006. The papers filed in this case indicate that Petitioner and other neighbors had actually observed construction activities on Mr. Rockman's property in November 2005 and had filed complaints with the Department regarding these unauthorized activities. These complaints evidently led to the filing of an application by Mr. Rockman. On March 17, 2006, Petitioner, who resides at 328 Brooks Street, Southeast, Fort Walton Beach, and has 50 feet of frontage on the water with a dock extending into those waters, filed a letter with the Department, which was treated as a Petition challenging the Department's earlier decision. This Petition was later dismissed by the Department on the ground it raised claims concerning Petitioner's riparian rights, a matter beyond the Department's jurisdiction. Petitioner then filed an Amended Petition on July 11, 2006, in which he again contended that his riparian rights would be severely restricted by the proposed activities, and that the dock would create a navigational hazard. Although Florida Administrative Code Rule 62-312.050(1)(d)3. requires that a project not "create a navigational hazard" in order to be exempt from permitting requirements, Petitioner opted to base his claims on two provisions in Florida Administrative Code Rule 18-21.004(7), which contains the general conditions for authorizations to use sovereign submerged lands. The riparian rights issue was again excluded from consideration at a status conference held on January 5, 2007. The parties advise that this issue is now being pursued in a separate action in circuit court. Through the introduction into evidence of its complete permit file as Department Composite Exhibit 1, the Department established that the proposed activities are exempt from permitting requirements under Florida Administrative Code Rule 62-312.050(1)(d). More specifically, the activity will take place in waters which are not located in Outstanding Florida Waters; the structures are less than 1,000 square feet of surface area over the landward extent of waters of the State; they will be used for recreational purposes; they will be constructed on pilings; they will not substantially impede the flow of water or create a navigational hazard; and the structure is the sole dock constructed pursuant to the exemption as measured along the shoreline for a minimum distance of 65 feet. The dock and associated structures and pilings will be constructed over sovereign submerged lands owned by the State of Florida. Under Florida Administrative Code Rule 18-21.005(1), which specifies the forms of authorization for consent to use sovereign submerged lands, "no application or written authorization is required for an activity that is exempt from the requirements of obtaining a permit," so long as certain conditions are met, including those found in Florida Administrative Code Rules 18-21.004(7). See Fla. Admin. Code R. 18-21.005(1)(b). The only relevant condition raised in the Amended Petition is whether or not the "[s]tructures or activities shall . . . create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). In construing this rule, and the similar requirement in Florida Administrative Code Rule 62- 312.050(1)(d)3., the Department considers whether the structures will create a navigational hazard for boaters on the Intracoastal Waterway, as well as the owners of property who reside on either side of Mr. Rockman. In his Amended Petition, Mr. Woolshlager contended that the proposed structures or activities will create a navigational hazard when he accesses the dock in front of his property. As clarified at hearing, Petitioner does not dispute that he (or any "good boat driver") has adequate ingress and egress for his smaller boat, even with the larger dock on Mr. Rockman's property. Indeed, the record shows that he has been observed leaving his dock and accessing the Intracoastal Waterway. However, Petitioner indicated that if he should die, his wife intends to sell the property. If the new purchaser desires to dock a larger boat, he fears that there will not be sufficient room to do so, and the value of his property will be diminished. Through testimony from a licensed boat captain, it was established that Mr. Rockman's dock does not create a navigational hazard for boaters in the Intracoastal Waterway whose boat channel lies at least 600 feet or so from the shoreline, or for property owners on either side of the applicant's property. Although Petitioner cannot dock a larger boat than he now has (a 21-foot boat), this is because he needs to dredge out the area where his existing dock is built and reconfigure its shape. (Mr. Woolshlager agreed that his dock actually encroaches a few feet onto Mr. Rockman's property; however, Mr. Woolshlager advises that the prior owner (who sold the property to Mr. Rockman) agreed to this encroachment when he purchased the property.) Therefore, all criteria have been satisfied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Mr. Rockman's application for an exemption from permitting requirements and authorization to use state-owned submerged lands. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 2007. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John N. C. Ledbetter, Esquire 4641 Gulfstarr Drive Suite 102 Destin, Florida 32541-5324 Nona R. Schaffner, Esquire Amanda G. Bush, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael William Mead, Esquire John S. Mead, Esquire Michael Wm Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549-1329 Gregory M. Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, 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 28th day of July, 1993.
Findings Of Fact Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid- point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Patco's application for permit on the following conditions: That no submerged or transitional vegetation be destroyed in constructing the dock. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed. That no dredging by any method be used to gain access to the dock. That the owner of the dock allow no docking except in slips seaward of the main part of the dock. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock. DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance. Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock. Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits. COPIES FURNISHED: Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506 Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Peter W. Mansfield 1861 Meadow Court West Palm Beach, Florida 33406
