The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Clearwater Bay Marine Ways, Inc., for a 62-space parking requirement variance (200 spaces instead of the 262 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. (The variance is required as a result of the Appellant's desire to use a part of the property as a cruise ship docking facility.)
Findings Of Fact On or about October 25, 1993, the Appellant, Clearwater Bay Marine Ways, Inc., applied to the City of Clearwater Development Code Adjustment Board (the Board) for an 81-space parking requirement variance (128 spaces instead of the 209 required under the Code) for its property located at 900 North Osceola Avenue, Clearwater, Florida. After filing the application, the site plan was modified, and the variance application was modified to request a 62-space variance (200 spaces instead of the 262 required under the Code). The variance is required as a result of the Appellant's plan to have Adventure Seaways Corporation use a part of the property for use as a docking facility for its 600-passenger cruise ship, the Majestic Empress. The City of Clearwater Development Code (the Code) has no parking space requirements specifically designed for cruise ship operations. To establish the parking space requirements, it was decided to utilize Section 42.34(6)(d)2.c. of the Code, which addresses certain "retail sales and service uses," and states: Theaters, indoor and outdoor recreation centers, swimming pools, skating rinks and other public or private recreation and amusement facilities: One parking space per three customers or patrons computed on the basis of maximum servicing capacity at any one time, as determined by the requirements of the city, plus one additional space for every two persons employed on the premises at peak period of use. Specific provisions over and above the standard may be required for uses such as movie theaters involving successive changes of patrons with a corresponding overlap in parking required. Under that provision, it was calculated that 200 spaces would be needed for peak capacity for the 600-passenger cruise ship. An additional 62 parking spaces are needed for other uses proposed in the site plan (including boat slips, a dive charter operation, a sail charter operation, a 2,800 square foot parts and service business and three work bays), for a total of 262 parking spaces for the overall site plan. The evidence was that no adjustments to the calculation under the "one space per three customers or patrons" formula were "determined by the requirements of the city," and that no additional spaces were required for "persons employed on the premises." (There was some evidence that the Adventure Seaways employees will park off-site.) Nor was there any evidence that there were any "[s]pecific provisions over and above the standard required for . . . successive changes of patrons with a corresponding overlap in parking required." The Adventure Seaways Corporation plans two excursions of the Majestic Empress a day, one during the day and one in the evening. It is expected that the ship would sail at full capacity only approximately one day a week, on Saturday. At peak capacity, it is expected that 30 percent of the passengers will arrive at the docking facility by tour bus. During the day cruise, the buses would leave the facility and return at the end of the cruise to drop off passengers for the evening cruise and pick up off-loading day cruise passengers. They would not remain at the facility during the times other cruise ship passengers would have their cars parked at the facility. Using only the "one space per three customers or patrons" formula under Section 42.34(6)(d)2.c. of the Code, the 70 percent of the total complement of passengers, who are expected to arrive by personal vehicle on peak days, would require only 140 parking spaces (420 passengers divided by three per parking space), well below the 200 spaces allocated to the cruise ship operation under Clearwater Bay Marine Ways site plan. Since Adventure Seaways has not been able to use the Majestic Empress at the Clearwater Bay Marine Ways facility without the parking space variance, it has transferred a smaller cruise ship, the Crown Empress, from its docking facility at Johns Pass on Treasure Island in the interim. The Crown Empress's capacity is only 400 passengers, and no parking space variance is required to use it at the Clearwater Bay Marine Ways facility. Meanwhile, Adventure Seaways has received temporary permission to utilize the Majestic Empress at the Johns Pass facility on the condition that it make greater than normal use of tour buses to transport passengers to and from the Johns Pass docking facility. Adventure Seaways purchased the Majestic Empress after being encouraged by City officials about the prospects of being able to utilize the Clearwater Bay Marine Ways facility. After purchasing the vessel, it had the vessel reconfigured to reduce its draft to accommodate the shallow waters it would have to navigate getting to and from the facility. Adventure Seaways also closed in the top deck of the vessel to meet Code requirements for noise control. Neither the special shallow draft configuration nor the noise control measures are required for utilization of the Johns Pass facility. Part of the encouragement by City officials about the prospects of Adventure Seaways being able to utilize the Clearwater Bay Marine Ways facility included assurances that the City would help Adventure Seaways gain access to additional parking, or develop or acquire additional parking, in the vicinity, if needed. Another option would be to utilize off-site parking and transport passengers to and from the Clearwater Bay Marine Ways facility by bus.
The Issue The issues are whether Respondents dredged and filled within wetlands and surface waters without a permit and, if so, what penalty and corrective action should be imposed.
Findings Of Fact The Trust owns the Property, and Freeman is the sole trustee of Trust and its sole beneficiary. The Property, which is located in Lake County, abuts Lake Nettie, a 45-acre lake with no outlet, under ordinary water conditions. A portion of the Property occupies wetlands and surface waters of Lake Nettie. Much of the upland abutting the lake in the vicinity of the Property is developed, although no other seawalls are visible. The shoreline in the vicinity of the Property is not heavily developed, but it bears clear signs of maintenance to control the growth of vegetation in the sandy beach. Sometime after October 29, 2003, Freeman's late mother purchased the Property, on which is located a single-family home. At the time, the Property did not have a dock or seawall. Shortly after Ms. Freeman acquired the Property, Freeman, an accountant, or his mother hired a contractor to build a dock. The dock was constructed in early 2004. Because it did not exceed 1000 square feet over water, this activity qualified for a noticed general permit, under Florida Administrative Code Rule 62-341.475(1)(a), although the record does not reveal whether Ms. Freeman provided the notice required for this activity. Nothing in the record suggests that the construction of the dock altered the pattern of limited vegetation of the Property waterward of the wetlands line. However, nothing in the record suggests that erosion, siltation, or turbidity has been a problem at the waterward end of the Property. The only evidence touching on the issue of drainage into the lake is that, in the vicinity of the Property, runoff enters the lake by sheetflow. In 2007, by which time title to the Property had passed to the Trust, Freeman sought to add a roof to the dock that his mother had had constructed. Finding that the contractor who had built the dock was no longer in business, Freeman obtained the required local building permit and did the work himself. Shortly after completing this job, Freeman constructed the seawall, obtaining the fill from a neighbor who was excavating a basement. In connection with this dispute, Petitioner has established a wetlands line on the Property. The wetlands line is amply supported by the evidence, including careful analysis by Petitioner's representatives of the vegetation and soils, as well as hydrologic indicators, such as algal mats, that are present on the Property within the area of the Seawall Project. Based on this wetlands line, the Seawall Project is in the wetlands, so that the construction of the project constituted dredging and filling of wetlands. The waterward face of the seawall is entirely in wetlands, as are the return walls that run upland from the seawall face and the fill placed upland of the seawall face. DEP Exhibit 11, which is incorporated by reference herein, accurately depicts the wetlands line on the Property. There is some confusion in Petitioner's pleadings between the surface area of wetlands that Freeman filled and the amount of fill. The surface area of disturbed wetlands is about 500 square feet. According to Freeman, whose testimony is credited, the amount of fill was about what would be contained in a small dump truck, so it might be in the neighborhood of five cubic yards. In the NOV, Petitioner describes the corrective action that it is imposing on Respondents. Within 45 days of the NOV, "Respondent" would be required to conduct certain preliminary activities and then: 1) remove the seawall and all associated fill waterward of the wetland line; 2) place the removed fill in a contained upland location where it will not discharge into wetlands or surface waters; 3) during and after regrading, stabilize with vegetation all slopes adjacent to the restored area as soon as possible (not more than 72 hours after attaining final grade) to prevent erosion, siltation, or turbid runoff into the wetlands and surface waters; remove nuisance and exotic vegetation prior to planting; replant the restoration area with listed wetland species on three-foot centers within elevation- based zones depicted on an attached drawing; plant healthy, nursery-grown stock from a state-licensed nursery; provide receipts for all plants used in the restoration area; monitor the restoration area at four-month intervals until the restoration area contains less than ten percent coverage of nuisance and exotic species and 80 percent of the plantings have survived for at least one year and are viable, reproducing plants; submit monitoring reports to Petitioner; and allow Petitioner's representatives access to the Property at reasonable times to determine compliance with the NOV conditions. Petitioner does not seek corrective action for the addition of the roof to the dock, which resulted in the addition of about 216 square feet to the original, 1000 square-foot dock. Presumably, this decision acknowledges the relative ease of obtaining a standard general permit for a dock of no more than 2000 square feet serving a single-family home under Florida Administrative Code Rule 62-341.427(1)(a)2. For this reason, the violation arising out of the Dock Project is relatively minor. The corrective actions focus on the seawall because the violation arising out of the Seawall Project is more significant. Under Florida Administrative Code Rule 62-341.475(1)(c), this activity involved 400 square feet more than the 100 square feet of dredging and filling that is allowed as a "minor system" under a noticed general permit. An individual environmental resource permit would be required for this project, and there is no reason to assume that Respondents would be able to obtain such a permit. Corrective action is therefore necessary in the form of the removal of the entire Seawall Project, including all of the fill, and the restoration of the pre-project grade. The question concerning corrective action is the extent of Respondents' liability for undertaking the planting scheme outlined above in the NOV. The record fails to establish the restorative nature of this activity because, immediately before the commencement of the Seawall Project, the shoreline in the impacted area was unvegetated. If Respondents had applied for permits for these two activities, Petitioner would have charged the fee for the proposed activity that carried the higher fee, which is the Seawall Project. The application fee would have been $600. By not applying for and obtaining this permit, Respondents wrongly obtained an economic benefit of $600. The fact that Respondents will only be allowed to keep the product of the Dock Project suggests that the final economic benefit should be based on the reduced fee associated with this activity, but, for reasons stated in the Conclusions of Law, this point is irrelevant because Petitioner is not authorized to recover either application fee in this case. Two of Petitioner's representatives testified as to the cost of their investigatory services in this case. Based on the total hours expended, at their respective hourly rates, without regard to any fringe benefits, the cost of the investigation is about $1700, but, for the reasons stated in the Conclusions of Law, this fact is also irrelevant because Petitioner is not authorized to recover these costs in this case.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
The Issue The issue 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
Findings Of Fact Petitioner owns property located at 530 Mandalay Avenue, Clearwater, Florida, on which a 14-unit, two-story hotel is located. The property is zoned CTF-28. The existing motel is non-conforming to the building and zoning regulations in the following specifics: Density. The zoning regulations allow 42 motel units per net acre. The property is now developed with a density of 70 units per net acre. Lot area. Minimum size lot on which a motel may be constructed is 10,000 square feet. This lot size is 8700 square feet. Setbacks. Required setback is 15 feet. The existing setback from public right-of-way is virtually zero and on the south and west sides the building is within five feet of the property line and stairways encroach into those areas. Impermeable surfacing. Maximum permissible impermeable surfacing is 75 percent of the property. At this site impermeable surfacing occupies 85 percent of the property. Parking. Regulations require 14 parking spaces. Here there are only seven spaces and some of those are located in the public right-of-way. Petitioner is requesting a variance to construct a storage/office building within three feet of the east property line and construct a roof and sundeck with zero clearance from the property line at Mandalay Avenue. Granting this variance will make the property more non-conforming than it is at present. Petitioner contends that the property will be upgraded if the variances requested are granted. No credible evidence was presented to justify the variances requested.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Trustees of the Internal Improvement Trust Fund enter a final order granting Petitioners to maintenance dredge a navigation channel over sovereign submerged lands as more fully described in Petitioners' Exhibit 8 (DER Permit/Certification No. 081510235). DONE and RECOMMENDED this 8th day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE, 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 8th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0534 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed Findings of Fact 1 through 72 are adopted in substance as modified in Findings of Fact 1 through 72. Rulings on Proposed Findings of Fact Submitted by the Respondent Proposed Findings of Fact 1, 2, 3, and 4 are adopted in substance as modified in Findings of Fact 10, 1, 19, and 20, respectively. Proposed Findings of Fact 5, 6, 7, 10, and 12 are rejected as not being supported by competent substantial evidence in the record. Proposed Findings of Fact 8 and 9 are adopted in substance as modified in Finding of Fact 36. Proposed Findings of Fact 11, 13, 14, 15, 16, 17, and 19 are adopted in substance as modified in Findings of Fact 21, 25, 9, 9, 4, 4, and 11, respectively. Proposed Finding of Fact 8 is not relevant, but see Finding of Fact 42. Proposed Finding of Fact 20 is not relevant since the SWIM Plan has not been adopted. COPIES FURNISHED: Joseph W. Landers, Jr., Esquire John T. LaVia, III, Esquire Post Office Box 271 Tallahassee, Florida 32302 M. B. Adelson, IV, Esquire Edwin Steinmeyer, Esquire Department of Natural Resources Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Board of Trustees of the Internal Improvement Trust Fund 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
