The Issue Is Secret Oaks Owners' Association, Inc. (the Association) entitled to the issuance of a wetland resource management permit (environmental permit) from the Department of Environmental Protection (DEP) and a consent of use of sovereign submerged lands (consent of use) from the Board of Trustees of the Internal Improvement Trust Fund (the Board) which would allow the construction of a dock?
Findings Of Fact The Parties DEP is charged with the regulation of dredge or fill activities, in, on, or over the surface waters and wetlands in the state of Florida as contemplated by Chapters 373 and 403, Florida Statutes, and rules promulgated in accordance with those statutes. In this capacity, DEP conducts regulatory review of applications for environmental permits which would allow the conduct of those activities in the regulated areas. DEP also has the responsibility as delegated staff of the Board to take final agency action on requests for proprietary authorization, in this instance, consent of use of sovereign submerged lands. Here, any proprietary authorization would be in accordance with Chapter 253, Florida Statutes, and associated rules. The review process undertaken by DEP for the environmental permit and consent of use is concurrent. See Section 373.427, Florida Statutes. The Association sought an environmental permit and consent of use in the interest of 15 lot owners in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, Florida, to construct a dock. The Association which represents the interest of the lot owners is a Florida not-for-profit corporation whose current president is William Magill. The Parlatos own and reside at Lot 10 within the Secret Oaks subdivision. They do not desire to participate with the other 15 lot owners in requesting permission form DEP to build the proposed dock. The Parlatos oppose the project and have expressed that opposition through their petition. Before the Parlatos purchased Lot 10, George W. Law, the developer of Secret Oaks subdivision, prepared, and had recorded with the Clerk of Circuit Court in St. Johns County, Florida, a Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision (the Declaration). In pertinent part that document stated: The Developer hereby grants to the present and future owners of all the lots in said subdivision . . . and to their guests and lessees and other persons authorized by any such owner, a non-exclusive, perpetual, and releasable easement on, over, along, and across those portions of Lot(s) 10 . . . of said subdivision which are subject to the 20' drainage easement as shown on said plat and running from Secret Oaks Place westwardly to the St. Johns River for the purpose of pedestrian access to and from the lots in said subdivision and said other parcel and the St. Johns River and any dock now or hereafter located thereon and for the use and enjoyment of any such dock and any other improvements now or hereafter constructed within said easement by the Developer or by the owners, as hereinafter authorized. The provisions of this paragraph shall not be deemed to be or imply any dedication of said easement or of said dock, if any, or of any other improvements to any person not designated herein or to St. Johns County or to the public. Given that the Declaration of the easement in favor of the present and future owners of the lots in the subdivision, and other related persons, was subject to the preexisting 20- foot drainage easement in behalf of St. Johns County, the easement for those lot owners and other persons was deemed non- exclusive. The drainage easement for the benefit of St. Johns County had been previously recorded by the developer as part of a plat in the public records of St. Johns County, Florida. The nature of the drainage easement held by St. Johns County at Lot 10 is for an outfall structure involving a 24-inch diameter culvert at the edge of the river designed to convey stormwater from the uplands into the river. The basis of the Association's request for an environmental permit to construct a dock and for consent of use to place that dock over sovereign submerged lands is premised upon the easement fronting the St. Johns River granted the lot owners in the Declaration and the subsequent Secret Oaks Subdivision Owners' Agreement (the Agreement). The Agreement was also recorded with the clerk of the Circuit Court in St. Johns County, Florida. The latter document reiterated the existence of the easement in favor of the lot owners and defined its terms. It, like the Declaration, was recorded before the Parlatos closed their purchase of Lot 10. The agreement at Article V., RULES CONCERNING USE OF THE DOCK stated in pertinent part: Nothing in the making of this contract shall be construed to expand the easement area described in the Declaration or to otherwise grant, or to otherwise authorize unlicensed or unauthorized trespasses upon Lot(s) 10. The easement is clarified so that it is understood that it is over, under, in and through the Dock as well as the portions of Lot(s) 10 ---------------described in the Declaration. The reference to an existing dock pertained to a dock extending from the shore, at Lot 10, at a place unassociated with the easement. However, the easement was connected to the main dock by an "L" shaped auxiliary dock beginning at the shore of the easement roughly parallel to the main dock and then at a right angle connecting to the main dock in the water. The developer, Mr. Law, had constructed the main dock and auxiliary dock before preparing and having recorded the Declaration. He never arranged for appropriate regulatory permission or consent for lot owners and other affiliated persons to use the main dock and auxiliary dock. The Parlotos were aware of the rights of other lot owners under the Declaration and Agreement before purchasing Lot 10. Before the present application was made, the preexisting "L" shaped auxiliary dock connecting the easement to the dock still in existence (the main dock) at Lot 10, had been removed by the Parlatos, depriving other lot owners of access to the main dock from the shore. Ward lives at 912 Fruit Cove Road, in Jacksonville, Florida, immediately adjacent to and south of the Parlatos' property. The Application On November 28, 1994, DEP received the Association's Joint Application for Works in the Waters of Florida. By this application the Association sought to construct a dock extending from the middle of the easement on Lot 10, commencing at the shoreline at Lot 10, extending 562 feet into the St. Johns River, a Class III waterbody. The total square footage of the proposed dock over waters of the state contemplated by the application was 3,234 square feet. The proposed dock was constituted of an access pier 5 feet by 520 feet, a terminal platform at the end of the access pier 10 feet by 16 feet, and a proposed covered boat slip 16 feet by 28 feet waterward from the terminal platform with an associated proposed catwalk 3 feet by 26 feet at the boat slip. See DEP Exhibit No. 2. Another dock extended from Lot 10 whose length was approximately 510 feet. This is the dock constructed by the developer, Mr. Law. It was located outside the easement, adjacent to the lot owned by the Parlatos. A second dock existed on the property south of the proposed dock approximately 550 feet in length. The dock to the south of Lot 10 described in the Association's 1994 application and referred to here belongs to Ward. The existing dock immediately south of the proposed dock was 90 feet away from the existing dock on Lot 10 at the closest point. The existing dock extending from Lot 10 is the dock that was "now" located described in the Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision previously discussed. More recently, on March 3, 1999, pursuant to the application of the Parlato's in DEP File No. 55-136932-001-ES, DEP issued the Parlatos an environmental permit and consent to use sovereign submerged lands in relation to the existing dock extending from Lot 10. The Parlatos were granted permit number 55-136932-001-ES based upon the entry of a final order by DEP in Secret Oaks Owners' Association, Inc., Petitioner vs. Martin D. and Linda K. Parlato and State of Florida, Department of Environmental Protection, Respondents, DOAH Case No. 98-4281/OGC Case No. 98-1329. This allowed the Parlatos to reconfigure that dock when compared to its appearance from that which existed when the Association applied for its permit to construct its proposed dock. The activities allowed by the Parlato permit and consent of use are as follows: This project is to remove an existing 4 foot by 10 foot walkway platform, a 15 foot by 16 foot terminal platform, and a covered boat shelter from a private use dock in the St. Johns River, St. Johns County, and construct a 5 foot wide, 38 foot long jogged walkway addition, a 12 foot by 16.5 foot uncovered waterward "L" platform, and a covered two-slip boat shelter 40 feet in width and 45 feet in length, including 3 foot wide perimeter catwalks. This permit and consent of use did not address the right of Association members to use the existing dock. With these modifications the pre-existing dock from Lot 10 would be located closer to the Association's proposed dock. In reference to the present application, DEP staff recommended that the applicant consider potential impacts to manatees through the imposition of DEP's standard manatee construction conditions and that habitat resources such as submerged aquatic vegetation be protected from impacts. To this end the recommendation was made to construct the covered boat slip and terminal platform beyond the limits of the grass beds on the site. It was also recommended that the access pier be constructed 5 feet above mean-high-water to minimize the shading effect of the dock placement as that effect might influence the health of the grass beds. Similarly, it was recommended that adequate spacing be provided between the planks in the access pier to afford that protection. Finally, it was recommended that vessels not be allowed to tie up to the dock in the area where the submerged vegetation was located. In response to these concerns, the proposed dock would be elevated 5 feet above mean-high-water. The access pier that would be constructed over the grass bed is designed with adequate spacing to allow the maximum light penetration practicable. Signs would be placed on the access pier reminding users of the presence of submerged grass beds, and the possible presence of manatees in the vicinity of the dock. The terminal platform and covered boat slips would be located waterward of existing grass beds. See DEP Exhibit No. 5. The placement of handrails on the access pier and the terminal platform are also intended to discourage boaters from tying up in those places where the handrails are found, because it would be more difficult to exit the vessel onto the access pier or terminal platform than would be the case without handrails. In addition to signs being placed noting that the proposed access pier crosses submerged grass beds and the anticipated presence of manatees in the vicinity of the dock, a specific permit condition called for by DEP requires signage notifying users of the dock that no docking or mooring of watercraft is permitted along the access pier. The specific conditions also call for the elevation of the pier at a 5-foot distance above mean-high-water, as the dock design anticipates, and the imposition of additional measures in the handrail design to further discourage boaters from tying up and climbing over or through the handrails onto the access pier. Grass beds such as those at the site are used by manatees as habitat. Manatees have been observed in the vicinity of the area where the proposed dock would be constructed. Following the permit review, DEP determined to issue the permit as noticed on June 7, 1995. In March 1996, the Association offered an amended application with a design drawing intended to change the location of the landward extent of the access pier to avoid interfering with the St. Johns County stormwater outfall. This modification is insignificant. See DEP Exhibit No. 7. The proposed dock is comparable in its length to other docks along the shoreline of the St. Johns River, in the vicinity of the project. Should the proposed dock be constructed and used, no long-term adverse impacts to the water quality in the St. Johns River are anticipated. Short-term impacts to the water quality are expected and limited to problems with turbidity. However, the terms of the proposed permit reasonably mitigates those effects. During construction screens and curtains would be utilized to control turbidity and erosion. Some impacts on biological diversity can be expected through the shading of portions of the submerged grass beds but those impacts would be minimal given the design of the dock in accordance with DEP's specific conditions to protect the grass beds and their value as manatee habitat. The proposed project is not contrary to the public interest. The project will not have an adverse effect on the public health, safety, or welfare. Nor will the project have an adverse effect on the property of others within the context of DEP's protection of the environment consistent with the permitting process. Concerns expressed by the Parlato's about their potential liability for personal injury claims arising from the use of the proposed dock; the possible claims made against the Parlato's for dock repair and maintenance associated with the proposed dock; and the possible effects of the construction of the proposed dock on the value of their upland property are not within the ambit of DEP review when considering an application for a wetland resource management permit. No adverse effects are anticipated on navigation as that term has been defined by DEP. To that end, the proposed dock location in relation to navigation, in broad terms, does not interfere with vessels in commerce and vessels used for recreation. Moreover, the use of the proposed dock would not interfere with those opportunities. In addition to the permanent signs to be placed to inform dock users that manatees might be present, the proposed permit contemplates other protections while the dock is being constructed. Taking into account the protections incumbent upon the Association that have been prescribed by DEP in its proposed permit, there will be no adverse impact to manatees and their habitat or fish and other wildlife and their habitat. Likewise, there will be no adverse effects on fishing or recreational values or on marine productivity in the vicinity of the proposed dock. Consent of Use While the association was successful in its attempt to gain proposed permit no. 552613202 to construct the dock in question here, the Association met with resistance in its related request to gain consent of use of sovereign submerged lands. On September 21, 1995, DEP denied the Association consent of use of sovereign submerged lands for the reason that: The proposal is inconsistent with Chapter 18-21.004(3)(b), Florida Administrative Code (F.A.C.) which states: 'applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.' The reason sufficient title interest is required is to ensure that the Board of Trustees of the Internal Improvement Trust Fund will be able to lien the upland property to recover costs and fines associated with violations of the consent and/or removal of the structure. Past and current Board of Trustees' policy has been and is to consider an easement an insufficient title interest to build a structure on sovereign lands unless the owner of the upland gives written consent for such use of the property, including the state's right to lien his uplands. In this case, where the upland owner refuses, consent must be denied by the Trustees. On February 28, 1996, by way of clarification, DEP wrote the Association and stated: Riparian rights are held only by the title holder or the holder of the lease of the riparian uplands. See Section 253.141, Florida Statutes. Thus, it is the Department's position that a holder of a mere easement does not have sufficient title interest in the uplands to make application for activities on sovereignty submerged lands. The Association challenged the DEP decision to deny consent of use and requested a Section 120.57(1), Florida Statutes, hearing. In that case, the Association, DEP, the Parlato's, and St. Johns County were named parties. At the commencement of the final hearing before the undersigned, it was determined that material disputes of fact did not exist and the case was returned to DEP for conduct of a hearing consistent with Section 120.57(2), Florida Statutes. In that hearing, a decision was reached based upon the interpretation of Rule 18- 21.004(3) (b), Florida Administrative Code. In a decision by Percy W. Mallison, Jr., Hearing Officer appointed by DEP, entered on October 21, 1996, in the case of Secret Oaks Owners' Association, Petitioner v. State of Florida, Department of Environmental Protection, Respondent, and Martin and Linda Parlato, and St. Johns County, Intervenors, OGC Case No. 95-2392, Hearing Officer Mallison denied the Association's request for consent of use to use sovereign submerged lands because the Association did not qualify under the terms of Rule 18-21.004(3)(b), Florida Administrative Code, to be granted consent. The Association appealed the denial of its Request for Consent of Use of Sovereign Submerged Land and on motion for rehearing in Secret Oaks Owners' Ass'n, Inc. vs. Department of Environmental Protection, 704 So. 2d 702 (Fla. 5th DCA 1998), the court concluded that DEP's interpretation of Rule 18-21.004(3)(b), Florida Administrative Code, as excluding the Association from applying for consent of use was clearly erroneous and reversed and remanded the case for consideration leading to the present proceedings. Following the remand, after reviewing the Association's Request for Consent of Use, on September 10, 1998, DEP gave notice that it intended to grant consent. In that notification it referred to the application calling for construction of a community dock with one covered boat slip. As a consequence, in the preliminary determination DEP concluded that the facility had less than three or more wet slips and was not subject to the provisions in Rule 18-21.004(4), Florida Administrative Code, pertaining to ownership-oriented docking facilities. Additionally, the Statement of Intent to Grant Consent of Use referred to the expectations in Chapter 18-21, Florida Administrative Code, wherein the applicant could extend the dock to exceed the ratio of submerged land to shoreline in order for the applicant to access reasonable water depths. Given the water depths in the vicinity of the proposed dock, its length and size comports with the minimum necessary to provide reasonable access to navigable water, while allowing for construction of a covered boat slip. Notwithstanding the fact that the proposed dock could be used by multiple families involved with the Association, DEP perceived the Association as requesting consent of use pertaining to a single-family-type dock. The guests and invitees of those families would also have access to the dock. DEP considered the application as a request of consent of use as a residential dock based upon the design for one boat slip to moor one boat. Although all Association members can potentially use the dock, at present there has been discussion of precluding persons within the Association who have no interest in using the dock. The Parlatos are not members of the Association based upon their request to be excluded from membership. The Association has yet to establish rules pertaining to the use of the proposed dock. Although rules pertaining to the use of the proposed dock have not been determined, the Association anticipates developing rules for the use of the proposed dock that are similar to those that have been established in the Agreement. Thus far, those rules in the Agreement have been related to the hypothetical use of the existing dock extending from Lot 10. Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code, contemplate that the Board and through its delegation of authority, DEP, are expected to fulfill the trust and fiduciary responsibilities in managing the use of sovereign submerged lands for the public benefit. More specifically, the Board has the authority pursuant to Section 253.04, Florida Statutes, to impose administrative fines in relation to improper acts associated with the use of sovereign submerged lands. To the extent that the Board needed to pursue the remedy of imposition of an administrative fine against the Association for an impropriety, the Association has limited assets. Its assets are constituted of $400.00 in dues per year ordinarily assessed against the Association members for legal expenses and maintenance of common areas in the subdivision. The Board may also bring suits in pursuing its responsibilities as trustee of sovereign lands. This opportunity is associated with Section 253.04, Florida Statutes. Association's Prior Applications On September 18, 1992, the then Department of Environmental Regulation, now the Department of Environmental Protection, received the Association's Joint Application for Works in the Waters of Florida. Parlato Exhibit No. 8 admitted into evidence is constituted of the joint application and contains information concerning the design of two alternatives. The first alternative was for the replacement of the L-shaped auxiliary dock that had been removed by the Parlatos. With the reconstruction of the auxiliary dock contemplated by the application submitted by the Association, members of the Association could use their easement to access the auxiliary dock and pre-existing main dock. The alternative proposed in the application made by the Association was to construct a dock extending directly from the easement unconnected to the preexisting dock. The application for both alternatives was denied. The Association challenged the denial. In a contested hearing pursuant to Section 120.57(1) Florida Statutes, the Association did not prevail. The outcome of that litigation is found in Secret Oaks Owners' Association, Inc., v. State of Florida, Department of Environmental Protection and Martin and Linda Parlato, 15 F.A.L.R. 3786 (Dept of Env. Protection 1993). The final order in the above-referenced case adopted the recommended order entered by Ella Jane P. Davis, then hearing officer of the Division of Administrative Hearings. The Parlatos, through their petition in opposition to the grant of an environmental permit in the present case, claim that the Association should be denied that permit based upon the doctrine of res judicata or collateral estoppel. To this end, the Parlatos assert that the determination in the prior case in which the Association was denied an environmental permit should promote the denial of the present application for an environmental permit. In comparing the facts found in the present case with the findings of fact in Secret Oaks 15 F.A.L.R. 3786, then hearing officer Davis found as 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. * * * 11. 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. * * * 13. 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. * * * 15. 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 grass beds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with the 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. * * * 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. The permit application seeks a multi- family permit for either 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 50 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 St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all 16 lots, their families, and social invitees. Although there are currently only three or four houses on the 16 lots, there is the potential for 16 families and their guests to simultaneously use any multi-family dock. Although all 16 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. * * * 25. 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 grass beds 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 re-suspension of bottom sediments onto adjacent grasses. * * *
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. As contemplated by the final order wherein it was determined that the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786 would not prejudice the opportunity for the Association to make future applications, another application was made for the construction of a dock. That application was made on September 28, 1993, to DEP for a wetland resource management permit allowing construction of a 4-foot wide, 70-foot long, "L"-shaped access walkway, from the easement to the pre-existing dock. The application contemplated the reclassification of the pre-existing single-family dock to a multi-family dock with 6 mooring pilings to be installed at the waterward end of the pre- existing dock creating 6 additional 15-foot wide by 20-foot long boat slips. This application was in accordance with DER File No. 55-238536-2, St. Johns County. With the addition of the 6 boat slips there would be 7 permanent boat moorings at the pre- existing dock. The applicant intended to install handrails on the portions of the dock that crossed the grass beds to preclude boating activities in those areas. A lock-gate was to be installed to restrict access and two signs were to be posted advising dock users not to impact the grass beds. In denying the application in DER File No. 55-238536- 2, DEP pointed to the risk of manatees that would be promoted by the addition of 6 additional slips to the existing dock. DEP indicated that the potential adverse impacts to manatees and their habitat could be overcome through the entry of a long-term agreement with DEP insuring that the facility contemplated for construction is operated in a manner so as to protect manatees in their habitat. The Notice of Intent to Deny became the final disposition in that permit application absent the Association's challenge to the preliminary decision by DEP. Concerning the Parlatos' assertions of res judicata and collateral estoppel there are significant differences in the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786, compared to the present case on the facts. The proposal in the present case reduces the size and length of the proposed dock, raises the height of the proposed dock above mean high water, places handrails on the proposed dock, and most significantly, reduces the potential mooring areas to one covered boat slip.
Findings Of Fact Petitioner Benton and Respondent Maine own adjacent tracts on a dead- end, but navigable, oxbow of the Kissimmee River. The Bentons are weekend and vacation residents, and Maine operates a commercial RV-trailer campsite. To accommodate the needs of his guests for boat launching and landing facilities, Maine constructed a 60 foot pier into the river fronting his property in July, 1982. However, he had not obtained any permits for this construction, and later removed 18 feet of the pier at the direction of the U.S. Army Corps of Engineers. He has applied to DER to obtain after the fact approval of the existing 42 foot pier. He also seeks to extend this pier to 52 feet and to add a 12 foot side dock at the end of the extension. DER has studied the site and reviewed the proposed additional construction. There was no evidence to indicate that the existing pier or the proposed extension would harm the environment or create a navigational hazard. However, the extended pier would occupy fully half of this waterway, which is about 100 feet wide in this area. Petitioner objects to the proposed pier extension on esthetic grounds. Although the pier is constructed at a 90 degree angle to Maine's shoreline, it crosses directly in front of the Benton property. This situation results from the layout of the Benton and Maine tracts which intersect the river at approximately 45 degree angles. An imaginary extension of the Benton and Maine property lines into the river would place much of the existing pier and all of the proposed addition within the Benton extension. The proposed side dock would point toward the Benton property and further aggravate this intrusion. Since the location of the pier is close to the Benton-Maine property line, the proposed side dock's placement would require boats to be launched and landed directly across the Benton waterfront. The Benton property derives its principal value from its waterfront character. Therefore, the degradation of view caused by the pier extension along with the additional boat traffic near the side dock would adversely affect Petitioner's enjoyment of his property.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a permit to John E. Maine approving his existing 42 foot pier in the Kissimmee River, subject to compliance with Section 253.77, Florida Statutes (1983). It is further RECOMMENDED that the application of John E. Maine insofar as he seeks to lengthen the existing pier be denied; but, that application for a side dock extension, if redesigned as stated herein, be approved. DONE and ENTERED this 23rd day of August, 1984, 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 23rd day of August, 1984. COPIES FURNISHED: Vernon E. Benton 1280 North West 127 Street North Miami, Florida 33167 Douglas H. MacLaughlin, Esquire and Astrid L. Wistedt, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John E. Maine Route 1, Box 508 Lorida, Florida 33857 Bert J. Harris, III, Esquire Post Office Box 548 Lake Placid, Florida 33852 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
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.
The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
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 determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, 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 27th day of June, 2008.
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2000.
Findings Of Fact Sea Isles Condominium Association (Petitioner) is the riparian owner of lands at 25714 Hickory Boulevard, Bonita Springs, Florida 33923. The Petitioner's lands lie along the Broadway Channel connecting the Gulf of Mexico to Estero Bay. There are 84 upland units in the condominium. Some condominium residents without docking slips have requested that the Petitioner apply for expansion of the existing facility. The waters adjacent to Petitioner's upland property are located within the Estero Bay Aquatic Preserve (pursuant to Section 258.39(28), Florida Statutes) and are designated as Outstanding Florida Waters (OFW) by the Department of Environmental Regulation (DER). At some point in approximately 1982, the condominium developer sought approval for the construction of docking facilities. By letter of January 25, 1982, Richard P. Ludington, then Director of the Division of State Lands of the Department of Natural Resources (DNR), indicated that there was no objection to the proposed dock project. The parties to this case have jointly stipulated that the Ludington opinion was based on the fact that the proposed project was a private non-income producing facility (a lease therefore not being required) and was not in conflict with any existing rules. The DER issued permit number 36-42521-5E, dated February 9, 1982, and the U.S. Army Corps of Engineers issued general permit number SAJ-33, both approving and authorizing the construction of the docking facility. Although the water body had been designated as an aquatic preserve, there were no adopted administrative rules regulating such projects at the time of the initial dock construction. The approved sixteen slip docking facility was constructed along the margin of the shoreline in 1983 by the developer of the condominium. Due to extremely shallow water depths, only two of the slips were accessible. At some point thereafter, the Petitioner began efforts to remedy the unusable slip situation. Initially, the Petitioner desired to dredge the area, but was unable to secure approval to dredge from regulatory agencies. The Petitioner then began to consider additional solutions. The solution upon which the Petitioner decided was removal of the existing slips and construction of an extended boardwalk and dock located in navigable water. On March 28, 1985, the DNR notified the Petitioner that the project would require approval in the form of a submerged land lease from the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Board"). On August 20, 1985, the DER issued permit number 361011295, authorizing the removal of the existing structure and the construction of a 22 slip docking facility as proposed by the Petitioner. On behalf of the Board, the DNR reviews applications for leases of sovereignty submerged lands. In reviewing such requests, the DNR calculates the maximum amount of sovereignty submerged lands which may be preempted by a proposed facility. According to administrative rule, the area of sovereignty submerged land preempted by a private residential multi-slip docking facility may not exceed the total square footage equal to ten times the riparian waterfront footage of the affected waterbody. DNR's calculation of the affected shoreline indicated that the Petitioner's riparian waterfront measured 433 feet. Application of the 10:1 ratio would indicate that the area of sovereignty submerged land preempted by the proposed multi-slip docking facility could not exceed 4330 square feet. As early as 1986, a surveyor employed by the Petitioner believed the DNR shoreline calculation to be erroneous and determined the Petitioner's riparian shoreline to be 601 feet. After discussing the discrepancy between measurements, the DNR representative informed a representative of the Petitioner that Sea Isles could obtain a mean high waterline survey to determine the actual shoreline footage if it disagreed with the DNR calculation. Although there is testimony that a survey provided to the DNR established the mean high waterline, the greater weight of the evidence establishes that the survey was not identified as a mean high waterline survey, but as a safe upland line survey. No credible mean high waterline survey was provided to the DNR by the Petitioner at that time. Abutting the Petitioner's property to the south is a man-made channel which results in an unnatural extension of the shoreline. Such extensions are not included in computing the allowable square footage of sovereign submerged lands because the man-made shoreline does not abut sovereign submerged lands. It is unclear whether the calculations of shoreline were affected by this consideration. Despite the discrepancy, the Petitioner reduced the size of the requested docking facility to include a boardwalk and dock of ten slips totalling approximately 4300 square feet and extending 208 feet into the waterbody (approximately 35 percent of the waterbody's width). The length of the extension violates administrative rule provisions governing extension into a waterbody which are addressed elsewhere herein. On July 23, 1986, Lee County passed a resolution of approval for the proposed docking facility land lease and granted a variance to Lee County Ordinance 85-25. The resolution of approval contained additional requirements, included a provision restricting the approval to not more than ten slips. The Petitioner asserts that the determination of shoreline was incorrect and was the result of "mutual mistake". The evidence fails to establish that the Petitioner's acceptance of the DNR's shoreline determination was based upon "mutual mistake." The evidence establishes that the Petitioner's representatives were aware of the discrepancy. The fact that the Petitioner agreed to deed a 575 foot conservation easement to the Board (to offset the potential adverse impact on manatee habitat as discussed elsewhere herein) would suggest that the parties were aware that the 433 foot measurement was inaccurate. For whatever reason, the Petitioner agreed to the DNR shoreline and dock calculation which formed the basis for the lease approved by the Board. Prior to approval of the lease, the Board reviewed a written "public interest" assessment which indicates that the length of the boardwalk to the proposed docking facility exceeded standards set by administrative rules. Pursuant to rule, exceptions to length restrictions may be made only where the applicant demonstrates that such exception is necessary to insure reasonable riparian ingress and egress. The Petitioner apparently demonstrated that, given the location of the existing sand flat, such exception was necessary to provide ingress and egress. According to the written analysis, the proposed project adversely impacted the manatee habitat located in the aquatic preserve. The analysis states that 575 foot conservation easement to the Board would offset the potential adverse impact on manatee habitat. The Petitioner committed to the conservation easement in order to meet the public interest test required of all docking facilities within an aquatic preserve. Special lease condition paragraph 5 requires the Petitioner to record a conservation easement for approximately 575 linear feet of shoreline in perpetuity to run with the land. The provision requires that documentation of the recording of the easement be provided to the Board within thirty days of the Board action and prior to execution of the lease. The lease conditions clearly indicate that the Petitioner will not seek authority to expand the docking facility. Special lease condition paragraph 5 prohibits any additional docking facilities or any other such development along the lessee's shoreline. Review of proposed special lease condition paragraph 6 (as compared to the staff recommendation and a subsequent affidavit executed by the Petitioner's representative on June 6, 1987) indicates that the paragraph appears to contain a typographical error in deleting the word "not" from the condition. The greater weight of the evidence establishes that the Petitioner agreed not to request authorization to dredge the docking area or channel or to request additional expansion of the facility. On April 21, 1987, the Board, apparently acting against the staff recommendation, voted to grant to the Petitioner a submerged land lease for the construction of a ten slip facility. Representatives of the Petitioner appeared before the Board during consideration and approval of the lease. On June 6, 1987, a representative of the Petitioner executed an affidavit on behalf of the Petitioner which sets forth the language of special condition paragraph six as originally proposed. In the affidavit, the Petitioner's representative agrees not to apply for authorization to dredge the dock or access channel, or to request expansion of the facility. A deed of conservation easement dated October 21, 1985, and signed by a representative of the Petitioner, was attached to the materials submitted to the Board for the April 21, 1987 meeting. Contrary to the lease requirement, the attached deed of conservation easement was never recorded. In 1986 or 1987, a conservation easement was recorded by the Petitioner in favor of the Board, but the easement contained no legal description of the subject property. However, the recorded easement does prohibit additional docking facilities and waives the Petitioner's rights of ingress or egress related to any such additional facilities. In early 1991, the Petitioner requested approval to expand the existing dock from 10 to 14 slip. The expanded structure would preempt 5620 square feet of sovereign submerged land. On May 15, 1991, the DER granted approval of the four slip expansion. On November 27, 1991, the DNR, by letter signed by Michael E. Ashley, Chief of the Bureau of Submerged Lands and Preserves, denied the requested four slip expansion. The letter was prepared at the direction and with the approval of the Director of the Division of State Lands. Mr. Ashley cites two reasons for the denial. First, the request violated the terms of the existing lease which provides that there will be no expansion requested. Second, the Petitioner had failed to record the 575 foot conservation easement which was required by the terms of the original lease. The request for extension was not presented to the Governor and Cabinet for consideration, but was reviewed by the "agenda review committee" of the DNR. The committee includes the Deputy Director, two Deputy Assistant Executive Directors, the General Counsel, and the Cabinet Coordinator for the DNR. The committee reviews matters which are identified as potentially requiring Board action to resolve. Where issues exist related to existing sovereignty submerged land leases, the DNR attempts to resolve the matter without referral to the Board. The authority to conduct business in this manner has not been reduced to writing, but is based on verbal direction from the Board and from Cabinet assistants. Subsequent to the letter of denial issued by Mr. Ashley, the Petitioner on or about December 30, 1991, filed a conservation easement granting to the Board, a perpetual interest in a parcel of land lying ten feet landward of the Safe Upland Line as described in the deed recorded in the records of Lee County, Florida, (OR 2268, Page 0401) with the Clerk of Court for Lee County. The parcel of land identified in the deed runs along the shoreline for a distance of 601 feet. The easement provides for modification by the signed agreement of the parties. Because the Petitioner seeks to expand an existing lease, it is required to demonstrate an additional public benefit would result from approval of the request. The Petitioner has proposed to plant an area of mangroves in the shallow "sand bar" area located behind the existing slips. There is no additional public benefit related to the request. The evidence fails to establish that granting the request to expand the docking facility is in the public interest.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a Final Order denying the request of Sea Isles Condominium Association to modify the existing sovereignty submerged land lease to provide for four additional boat slips to their existing ten slip docking facility. DONE and RECOMMENDED this 15th day of April, 1993 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1077 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, not supported by the greater weight of credible and persuasive evidence. 19. Rejected as to comments by Miller, irrelevant. 20-21. Rejected, irrelevant. Rejected as to 6,010 square feet of permissible preemption. Based upon shoreline calculation which is not supported by the greater weight of credible and persuasive evidence. Rejected, irrelevant. The manatee information was required under the conditions of the existing lease, and do not constitute a benefit to be considered in addressing the request to modify the lease. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 16. Rejected, unnecessary. COPIES FURNISHED: The Board of Trustees of the Internal Improvement Trust Fund c/o Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-3000 Robert Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 L. Kathryn Funchess, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #35 Tallahassee, Florida 32399-3000
The Issue The issues are whether Respondent, Bayhead Landings Property Owners Association, Inc.; Kimberly Lee, president; William Barthle, Architectural Review Committee (ARC) member; and Tony Kolka, ARC member, discriminated against John and Kimberly Whitt,1/ on the basis of Mr. Whitt's physical handicap in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Bayhead Landings Subdivision (Bayhead) is a deed- restricted community for which the Bayhead Landings Property Owners Association, Inc., was organized to operate and administer. Deed restrictions have been in place since 1990 and will continue in place until at least January 2031.4/ It remains unclear how many Bayhead parcels front the lake in question. There are four to five existing docks in that lake; however, none of those existing docks extend more than 80 to 100 feet into the lake. The Declaration of Covenants, Conditions, and Restrictions for Bayhead provide in pertinent part: 6.(a) For the purpose of further insuring the development of said land as a residential/agricultural area of highest quality and standard, and in order that all improvements on each lot shall present an attractive and pleasing appearance from all sides of view, there shall be a Committee consisting of no less than three (3) persons appointed to review plans and specifications, . . . . (b) The Committee reserves the exclusive power and discretion to control and approve all of the buildings, structures and other improvements on each lot or parcel in the manner and to the extent set forth herein. No residence, . . . or other structure or improvement, regardless of size or purpose . . . shall be commenced, placed, erected or allowed to remain on any lot or parcel, . . . unless and until building plans and specifications covering same showing the shape, height, size, location and orientation on the lot, floor plans, square footage, front, side and rear elevations, materials to be incorporated and exterior color schemes . . . have been submitted to and approved in writing by the Committee. * * * (d) As a prerequisite to consideration for approval, and prior to commencement of the contemplated work, a complete set of plans and specifications must be submitted to the Committee. . . . . The purpose of the ARC is to ensure that any development in Bayhead maintains the "community standards and deed restrictions" and is of the "highest quality and standard." To ensure that goal is met, the ARC is to receive a complete set of plans and specifications prior to the work starting. Mr. Whitt has a physical handicap as defined by the Act, section 760.22(7)(a). Mr. Whitt is confined to a wheelchair for mobility. The Whitts' backyard property has a significant slope downhill or drop-off towards the lake. The area between the house and the lake is muddy for a long distance, the terrain is uneven, and it is not suitable for a wheelchair to traverse. No evidence was received as to the actual distances between the house and either the drop-off area or where the terrain becomes uneven in the Whitts' backyard. The water level in the lake has been relatively low for some time; however, there is some water in it now. On September 7, 2010, Mr. Whitt submitted a proposed estimate and architectural review application to Respondents' ARC, seeking approval to construct a stationary dock on the Whitts' property (dock application). This dock application was the first received by the ARC in many years, and there is no evidence of any prior applications to build a stationary dock.5/ The dock application (Petitioners' Exhibit 3) included a three-page proposal (Proposal) from Coastal Construction; Gulfside Docks6/ that included the following "SPECIFICATIONS": Timber Piles 2.5CCA • Frame/Stringers/Caps 2" x 8" • Dock Lumber Pressure Treated .40 • Dock Bolts 5/8" HDG • SS Nails/Screws The Proposal also contained the following "STATIONARY DOCK" information: Construct new 300' x 5' dock with 20 x 16 head. We will add 2" x 2" lumber along perimeter of dock to act as bumper system Decking will be #1 pressure treated decking. Stainless Steel Screws will be used to secure deck boards The dock application did not contain any specific references to the dock being "wheelchair accessible"; however, it did contain information about a bumper system. The second proposal (Petitioners' Exhibit 10) contained the same "SPECIFICATIONS." The second proposal contained similar information regarding the "STATIONARY DOCK"; however, the language regarding the bumper system was altered to reflect "Install 2" x 2" wheel chair safety bumper around entire perimeter of dock - Approx. 663'LF. Stainless steel screws will be used as fasteners." On September 19, 2010, William Barthle, a member of the ARC, sent an e-mail to Mr. Whitt. The e-mail provided Mr. Whitt with a portion of Bayhead's deed restrictions and requested "WE NEED A DIAGRAM OF DOCKS [sic] PLACEMENT ON PROPERTY AS REFERENCED IN DOCS." On September 27, 2010, Mr. Whitt sent a plat map to the ARC with a hand-drawn dock sketched on it. The hand-drawing was not to scale and failed to provide detailed measurements of where the dock was to begin in relation to the residence or shed that were already on the property. Further, there was no rendering of what the dock itself would look like. On October 10, 2010, the ARC sent Mr. Whitt a letter requesting four specific items in order for the ARC to consider the dock application, including: Square footage of dock Height of dock The exact location of the dock on your property (distance from your house and distance from property line on each side, distance from any setback easement, or wetlands buffer boundary) A letter from Southwest Florida Water Management District approving the placement, length and location (starting/ending) of the dock Mr. Whitt's June 22, 2011, response letter (eight months later) to the request failed to provide the requested information. As of December 12, 2012, the Whitts had not provided the requested information. Mr. Barthle and Graeme Woodbrook both served on the ARC when the Whitts' dock application was submitted. Both gentlemen credibly testified that the Whitts' dock application failed to provide enough information to allow them to make a decision about it. Further, Mr. Woodbrook admitted he has some physical limitations and is sympathetic to people who have disabilities. While both men knew Mr. Whitt was confined to a wheelchair, neither knew why Mr. Whitt had to use it. Other ARC applications were admitted into evidence. These ARC applications involved: painting the exterior of a primary residence (two separate requests); landscaping in the front yard of a residence for a non-permanent 6' x 8' fish pond; replacing a playground set; resurfacing a pool deck, patio, and front porch entry; resurfacing a driveway; and extending a present screen porch. Of the three ARC applications that involved some type of new construction (fish pond, playground set, and porch extension), each contained pictures, dimensions, and/or diagrams sufficient for the reviewer to appreciate where the project was being constructed in relation to the house and property lines.7/ As of December 12, 2012, Respondent had neither approved nor rejected the Whitts' dock application. That application is simply not complete without the requested information. The dock application remains "pending," awaiting receipt of the requested information. The Whitts' position that they have provided everything that the builder has provided them is insufficient to provide the ARC with the requisite information to know where the dock will begin on the Whitts' property; how far out the dock will extend into the lake; and what the structure will look like.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed on behalf of Mr. and Mrs. Whitt. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of February, 2013.
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue is whether the applicants-respondents Floyd and Alice Melton have provided reasonable assurances that their proposed dock meets the requirements of Chapter 403, Florida Statutes (1989) and Chapter 17, Florida Administrative Code, for issuance of a dredge and fill permit. Only four issues of disputed fact are raised by the pleadings in these cases: (1) whether the project will adversely affect navigation as that term is used in Section 403.918(2)(a)3., Florida Statutes; (2) whether the project will adversely affect recreational values in the vicinity of the project, in the context of the public interest test of Section 403.918(2)(a)4., Florida Statutes; (3) whether an increased number of boats at the proposed dock would cause "pollution" which would violate water quality criteria promulgated by the Department, and (4) whether the pilings will harm seagrasses in the vicinity of the dock.
Findings Of Fact An 85' dock perpendicular to the shoreline of the Meltons' property at Lot 4, Block 2, Buccaneer Point Estates, Key Largo, was in existence in 1988, some portion of which was apparently constructed without the benefit of a dredge and fill permit. On October 20, 1988, Floyd Melton applied to the Department (hereinafter "DER") for an after-the-fact permit for a 48' x 20' section, as an addition to a previously existing structure. After DER received the Meltons' permit application, an agency field inspector visited the site to determine whether the Meltons' proposed project could be constructed in conformance with Chapter 403, Florida Statutes, including the "public interest" tests at Section 403.918(2), and the "Keys Rule," Rule 17-312.420, Florida Administrative Code. The project site is located in Class III, Outstanding Florida Waters. The relevant factual determinations that DER personnel had to make at the Melton site, to ascertain compliance with the Keys Rule, were (a) the water depths, and (b) the presence or absence of seagrass communities in the proposed boat mooring area. The proposed 90' dock would have terminated over seagrass community in less than 5' of water depth. DER informed the Meltons, on February 9, 19890, that the permit would be denied unless they redesigned the dock to extend a distance of 275' out from the shore (289' total length), to where a water depth of 5' existed, limited the dock to a 4' width, and elevated the access walkway 6 feet above mean high water, to prohibit mooring along it and to increase light penetration underneath the dock. The Meltons amended their permit application to so comply. There are seagrasses under the entire length of the proposed dock. There are dense seagrass communities at the terminus of the proposed dock, surrounded by less dense seagrass communities. Under the boat currently moored near the terminus of the Meltons' uncompleted dock, there is a dense seagrass bed that is not adversely affected by the presence of the boat, which is moored in 5' of water. There is a "halo" of denuded bottom extending 4-6 inches around each piling, and occasional gouges that extend beyond the halo, which features are an ordinary and expected effect of driving pilings into the sea bed. Petitioners' expert's uncontroverted testimony is that 10 pilings placed in the dense seagrass bed at the end of the proposed dock would have no effect on the viability of that seagrass bed, while 100 pilings "would definitely damage" its viability. The survey introduced by the Meltons shows six pilings where the terminal platform is to be constructed, and three more offshore pilings for mooring purposes, for a total of nine. Other existing mooring pilings shown in the survey, landward of the proposed terminal platform, are to be removed in accordance with the permit. The water depth at the end of the Meltons' existing 85' dock is between 3.0' and 3.25', which is comparable to other existing docks in the area. Fast boats, such as water-skiing boats and one-person watercraft, operating in shallow water over a seagrass bed can damage seagrasses by "prop scarring" or by stirring up sediments. At another dock in the area, where the water depth is 3.75' at the dock's terminus, there is evidence of damage to seagrass beds by such prop-scarring. The water depth at the end of Petitioner Traurig's dock is only 1.67' to 2.0', necessitating very careful boat operation to prevent damage to seagrasses. The stipulated modification to the permit allowing three mooring pilings and requiring mooring waterward of the terminal platform clarifies DER's understanding that boats would only be moored on the waterward side of the terminal platform. No more than one or two boats can reasonably be moored at the facility. That is no more than could have been moored at the previous dock; in fact, it is equivalent to the two moored at Petitioner Traurig's dock. The environmental impact of the proposed Melton dock would be far less than that of the other docks along this shoreline, primarily because it causes boats to be operated and moored in deeper water. Neither the proposed project, nor the one or two boats that can be expected to moor at the terminal platform, will have any adverse effect on Florida Bay or the seagrass communities in the immediate vicinity. The entire area of Florida Bay except for the shoreline area where the Melton and other docks in the vicinity are located is open for navigation. It is between 0.4 and 0.5 miles from the end of the proposed dock to the nearest navigation channel. The proposed dock is not a hazard to navigation in that nearest channel, the Intracoastal Waterway. It is, however, an inconvenience and can present a hazard to unwary nighttime recreational users in the waters next to the shoreline where the Melton, Clarke, and Traurig docks are located. Petitioners' witnesses' testimony focused on how the Melton dock would force them to change their usual paths while recreating in the area, or traveling to and from nearby docks. Water-skiers and "knee-towers" have had to modify the route they used to take when water-skiing or knee-towing past the Melton property, now that much of the dock is in place. Some boat operators, Petitioners' witnesses included, continue to operate their boats so close to the Melton dock that near- collisions take place. A sailor chose to forego landing his catamaran at a dock near the Melton dock because its presence would have given him "a hard time getting out." Youngsters on "hydoslides" and "wet bikes," and in small boats, have passed landward of the outermost pilings of the uncompleted Melton dock, literally going under the structure, on several occasions. One neighbor witnessed three nighttime collisions with the uncompleted Melton dock by boaters, each of which ended when the boaters extricated themselves from the pilings. Traurig's tenant next door to the Meltons, when traveling to and from her dock, complained that "you can't go straight out anymore. You have to go out and then around. You have to be cautious..." Petitioner Traurig stated that the Melton dock would "almost cause her to jump out of her unpowered sailboat and tow it into her dock," as it would limit her ability to tack in the close confines created by the new dock. Petitioner Charles Clarke, whose property is separated from the Meltons by Petitioner Traurig's property, stated that the proposed dock is "an obstacle essentially to navigation and enjoyment of that waterway as I used it...," and that he is prevented from tacking into his dock by the presence of the Meltons' dock. Buccaneer Point is full of docks. The neighboring docks are generally approximately 100' long, while the Meltons' dock that DER proposes to permit will be 289' long, with mooring pilings and a boat extending this facility between 300' and 310' offshore. Boaters will be required to avoid this dock while recreating in the area, and while travelling to and from nearby docks. The proposed dock will discourage boaters and water- skiers from traveling through the very shallow waters off the ends of the other docks in the vicinity, potentially injuring themselves and the benthic communities. The Melton dock will not cross over the riparian lines of the Melton property. The project is clearly in the public interest by preventing ongoing adverse impacts of the existing dock, allowing the recolonization of habitat in those disturbed areas, and by extending the dock to prevent the destruction of the bay bottom. This is accomplished by elevating the dock to 6' and restricting its width to 4' in order to allow better sunlight penetration below the dock. This is also accomplished by prohibiting the mooring of vessels other than seaward of the terminus platform, thereby keeping vessels in deeper water to prevent additional destruction of the seagrass beds throughout the area. During the course of the final hearing, the Meltons and DER entered into several stipulations which will promote the absence of impact to the seagrass community. They have agreed that the following conditions will be made part of any permit issued by DER: The dock structure will be modified so that it is T-shaped rather than L-shaped. The terminal platform and access walkway will be of the dimensions contained in DER's "intent to issue." The access walkway can intersect the terminal platform at any point along the platform's 40' length. There will be 3 mooring pilings placed seaward of the terminal platform. The permit will restrict the mooring of vessels to the seaward side of the terminal platform. The Meltons will remove the 3 mooring pilings located to the right of the dock and 2 of the 4 pilings located to the left of the dock. The Meltons will not use a water-based barge in less than 2' of water in connection with the dock construction or driving or removing the pilings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the Meltons' application for a dredge and fill permit, conditioned upon the stipulations and the mitigative recommendation set forth in this Recommended Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16 day of October, 1990. LINDA H. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 89-6051 and 89-6135 Petitioners' proposed findings of fact numbered 2, 3, 6, 7, 22d, 22g, 22j, and 22r have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 1, 22f, 22h, 22i, and 22n- 22q have been rejected as not being supported by the weight of the evidence in this cause. Petitioners' proposed findings of fact numbered 4, 5, 19, 22a, 22c, 22e, 22i, 22k, and 22m have been rejected as being unnecessary for determination of the issues in this cause. Petitioners' proposed findings of fact numbered 8-18, 20, 21, 22b, 22s, and 22t have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The Department's proposed findings of fact numbered 1, 2, 6, 8-10, 12, 14, 15, 17, 19-23, and 26 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. The Department's proposed findings of fact numbered 4, 5, and 25 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The Department's proposed findings of fact numbered 7, 11, 13, 16, 18, and 24 have been rejected as being unnecessary for determination of the issues in this cause. Respondents Meltons' proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michael F. Chenoweth, Esquire 31 Garden Cove Drive Key Largo, Florida 33037 James S. Mattson, Esquire Joseph J. Vetrick, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key West, Florida 33037 Cecile I. Ross, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
