The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Broward County should issue an Environmental Resource Permit (the "ERP" or "Permit") to Palm Beach Polo Holdings, Inc., for the construction of five finger piers as sized, configured, located and approved by Broward County's Proposed Permit issued in 2007?
Findings Of Fact The Port Laudania Property Port Laudania is a privately-owned marina basin (the "Marina Basin" or the "Basin") in Broward County. Located just off the Dania Cut-off Canal south of Port Everglades, the Marina Basin is not far from the Atlantic Ocean and the Intra-coastal Waterway that lies along all of Florida's east coast. There are no fixed bridges or other impediments to the passage of large sea-going boats and ships between the Basin and the Atlantic. The Marina Basin is an ideal spot to berth large vessels such as yachts and those used in the ocean-freight shipping business. PBPH owns the submerged lands in the western approximate two-thirds of the Basin as well as adjacent uplands. Together, these submerged lands and uplands constitute the parcel located at 750 N.E. 7th Avenue in the City of Dania (the "PBPH Parcel"). Immediately adjacent is a parcel owned by C-Term, a Florida general partnership. Located at 760 N.E. 7th Avenue in Dania, the uplands at the address and the approximate eastern one-third of the Marine Basin (the part not owned by PBPH) comprise the "C-Term Parcel." The PBPH Parcel and the C-Term Parcel make up the Port Laudania Property. Prior to a conveyance in 1987 that divided the Port Laudania Property into two parcels, the property had been under common ownership. The entire property was owned in fee simple by Dennison Marine, Inc. ("DMI"). Just prior to the division of the property into two parcels, DMI conveyed an easement that would ensure that owners and lessees of both parcels would have unhindered access from the Dania Cut-off Canal to their respective parcels: a Cross-use Easement of Ingress and Egress (the "Cross-use Easement"). The Cross-Use Easement for Ingress and Egress On June 29, 1987, DMI executed the Cross-Use Easement.2/ Earlier, DMI had divided the Port Laudania Property into two parcels (Parcel I and Parcel II in the Cross-use Easement, referred-to in this order mainly as the C-Term Parcel and the PBPH Parcel, respectively) and had entered into an Agreement for Deed and Lease with Port Denison, Inc., for the purchase and sale of one of the two parcels. The transaction subject to the agreement had not yet occurred so that DMI remained the sole owner of the Port Laudania Property on the date the Cross-Use Easement was established. The Cross-Use Easement contains the following: WHEREAS, both Parcel I and Parcel II share an inlet off of Dania cut-off Canal, . . . WHEREAS, it is to the mutual advantage of the present and future owners, tenants, invitees, etc. of both Parcel I and Parcel II that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress; NOW THEREFORE, . . . Denison Marine, Inc., with the consent of Port Denison, Inc., does hereby for itself and its successors and assigns, give and grant to the future owners, tenants and future tenants of all or any portion of the Property, their respective customers, employees, agents, invitees, successors and assigns, a non-exclusive easement for ingress and egress over and across the inlet as described in Composite Exhibit "C" hereto. This non-exclusive easement shall run as a covenant with the land and constitute [sic] an appurtenance thereto. Petitioners' Ex. 1 at 0164-0165. Composite Exhibit "C" of the Cross-Use Easement contains sketches and descriptions of both the "Easterly Portion of the Marina," see id. at 170-171, (the C-Term Parcel) and the "Westerly Portion of the Marina," see id. at 172-173 (the PBPH Parcel.) The descriptions include the entire Basin except for that occupied by the boat lift in the northern end of the Basin.3/ Neither the legal descriptions nor the surveys attached to the Cross-Use Easement depict any finger piers, docks or pilings in the Basin. Under the Cross-Use Easement, the ability of the parties to amend the rights granted therein is governed by the following: This Agreement may be altered, amended or terminated by written document executed by all the then fee simple title holders of all portions of the Property and then record holders of any first mortgages then encumbering any of said lands and recorded in the public records of Broward County, Florida. Petitioners' Ex. 1, second page, BK 1490 PG0165. C-Term has not agreed to amend the Cross-Use Easement to permit construction of the docks contemplated by the 2007 Notice of Intent and Proposed Permit. The rights conferred by the Cross-Use Easement are property rights that govern the use of the Basin. The Basin and the Cut-off Canal The Basin is man-made and frequently referred-to in documents that relate to it as an "inlet" off the Dania Cut-off Canal. Small and medium-sized pleasure crafts, large yachts, mega-yachts,4/ and commercial cargo vessels, some of which are as lengthy as 250 feet regularly pass through The Dania Cut-off Canal in the area of the Basin immediately south of its mouth. Aerial photographs show that the Basin was excavated in the early 1960's. Shortly after excavation, the Port Laudania Property was used as a commercial cargo terminal. Since at least 1967, the Basin has accommodated cargo vessels with lengths up to 250 feet give or take 15 feet. Petitioners' Exhibit 145 is an aerial photograph that shows vessels of approximately 250 feet on both sides of the Basin. For the approximately 250-foot vessel on the east side of the Basin (the C-Term side), the margin of error in measuring the vessels from the aerial is "[p]robably 10 feet, plus or minus." Tr. 1049. G&G has operated numerous vessels in the Basin at lengths of over 200 feet. Of the seven vessels that G&G owned or operated at the time of hearing the maximum length is 234 feet. From April 1999 to March 2006, vessels owned or operated by G&G have struck finger piers or docks on the PBPH side of the Basin "a handful of times." Tr. 893. None of the details of these collisions was produced at hearing. Standard procedure for such incidents would have been to file an internal report or a captain's report, but Mr. Ganoe could not remember whether a report was filed.5/ For his part on the PBPH side of the Basin, Mr. Straub is not aware of any G&G vessels hitting boats moored at the finger piers on the PBPH side of the Basin, indicating that the collisions were not serious. In contrast to evidence that collisions have occurred is evidence from one frequent navigator of the Basin, Jim Steel of Steel Marine Towing. With the exception of the years in college, Mr. Steel has towed vessels in the area of Broward County consistently since 1988 when he began towing with his father at the age of 12. The range in length of the vessels, both commercial and private, that Mr. Steel has towed is from 120 to 250 feet. Mr. Steel has towed hundreds of vessels in and out of the Basin. During those times, he has observed various dock and finger pier configurations. He never collided with the docks on the PBPH side of the Basin with his tugboat or the vessels he towed even when the fifth finger pier was 150 feet long during the time period from 1995-96. Mr. Steel described the Dania Cut-off Canal in the vicinity of the Basin as a congested area with a number of facilities that cater to marine traffic. Large motor yachts (100 feet to 150 feet in length), mega-yachts (longer than 150 feet), commercial vessels (up to 250 feet), smaller pleasure craft as well as other smaller boats comprise the traffic seeking access to facilities along the canal. The facilities include Harbortown Marina across the canal from the Basin, which has some spots for large motor yachts and berths for hundreds of smaller boats up to 90 feet. Facilities in the area that serve mega- yachts are Director's Shipyard, Powell Brothers, and Playboy Marine. In the last five years, new facilities have been opened along the canal for smaller pleasure craft: American Offshore, Dania Beach Club and Dusty's. Mr. Steel described their function, "[t]hey are . . . what you would call rack and stack," (tr. 1562) storing boats sized from 20 to 40 feet pulled in an out of the water and stacked with a forklift. There are eight or nine such facilities west of the Basin. Mr. Steel estimated each of these facilities house at least several hundred boats. Mr. Steel summed up the traffic in the canal: "Some bright sunny days, it is extremely congested, some days it is not as congested, but there's always traffic there." Tr. 1550. 2001: The Delegation Agreement On May 22, 2001, an agreement was entered by three parties. Entitled "Delegation Agreement Among the Florida Department of Environmental Protection, The South Florida Water Management District and Broward County" (the "Delegation Agreement"), it delegated to Broward County's EPD "the authority for permitting, compliance, and enforcement on behalf of the Florida Department of Environmental Protection and the South Florida Water Management District programs." Joint Pre-hearing Stipulation, para. 1, at 11, 12. "Section 11E. of the Delegation Agreement provides that permits issued by the County under the Delegation Agreement 'shall consolidate in a single document the permit under part IV of Chapter 373 of the Florida Statutes, and any required Environmental Resource License' ("ERL") required under Chapter 27 of the Broward County Code of Ordinances ("BCC" or "Code").[']" Joint Pre-hearing Stipulation, para. 2, at 12. In April of 2002 or thereabouts, Broward Yachts submitted an after-the-fact application to EPD for an ERP and an Environmental Resource License (the "Dock Application"). "The Dock Application sought approval to install six total docks [finger piers] comprised of five [finger piers composed of] floating docks in the Basin, with lengths ranging from 150 feet to 190 feet, and one dock, in the canal parallel to the seawall, with a length of 240 feet." Joint Pre-hearing Stipulation, para. 4, at 12. Although the docks were on the PBPH Parcel of the Port Laudania Property, the application was not PBPH's, the owner; instead it was submitted by Broward Yachts, a PBPH tenant. PBPH and C-Term Tenants From November of 1998 to March of 2005, Broward Yachts, Inc. ("Broward Yachts")6/ leased the PBPH Parcel from PBPH for the purpose of manufacture and sale of private yachts and boat dockage. Broward Yachts sold certain of its assets to Lewis Property Investors, Inc., under an Asset Purchase Agreement dated March 2, 2005. On March 8, 2005, Lewis Property Investors' assigned its interest in the Asset Purchase Agreement to Broward Marine. Broward Marine is a Florida limited liability company, formerly engaged in the business of manufacturing, selling and servicing private yachts and activities that constituted operation of a marina on the PBPH Property. Broward Marine leased the PBPH Property starting in March of 2005. It continued to occupy the property under a lease-purchase option agreement with PBPH until June of 2009. C-Term's Property is the subject of a tenancy with G&G, an ocean-freight shipping company. G&G, therefore, has shared the Marina Basin with Broward Marine in recent years. Broward Marine's Departure In March 2009, Broward Marine signed an early termination of its lease with PBPH caused by Broward Marine's failure to pay rent. Broward Marine has not been a tenant or otherwise in possession of the PBPH Property since approximately November, 2009.7/ The termination of Broward Marine's lease was effective on June 15, 2009. After termination of the Broward Marine lease, the PBPH Property was re-let to Broward Shipyards, Inc., an entity that is not a party to this proceeding. At the time of the termination, Broward Marine's interests in the 2002 Dock Application and a revision of the application in 2003 (the "2003 Revised Application") were assigned to PBPH.8/ In the meantime, PBPH has pursued the application which had its origin in a complaint about the unpermitted structures and a warning notice issued by the County in 2002. See paragraph 35., et seq., below. The application for the license and permit was for floating docks. Floating Docks The floating docks used by Broward Yachts and others on the PBPH side of the Basin generally come in sections of 8-10 feet. They are secured to existing pilings in the Basin by a collar which slides up and down the piling or, as Mr. Lewis put it at hearing, "[t]hey float up and down . . . as the tide comes in and goes out." Tr. 204. The top of the piling emerges from the water and the rest of the piling extends downward generally into the bedrock at the bottom of the Basin. A series of floating docks make up a finger pier. Finger piers, the structures authorized by the Proposed Permit, can be lengthened or shortened by adding or removing floating docks based on business needs.9/ The ability to easily lengthen or shorten a finger pier in response to the business needs of PBPH or its tenants accounts for one of the main evidentiary features in this proceeding: the many finger pier configurations that appear in aerial photographs over the years and, in particular, since 1998 when PBPH came into ownership of the PBPH Parcel. The floating docks have been constructed of wood and Styrofoam. Those that PBPH seeks to install under the Proposed Permit will be "concrete bathtubs," tr. 580, which "work just as well and are a lot more permanent." Id. Structures made of concrete are of much likely to cause damage in the event of a collision with a vessel than are floating docks made of wood and Styrofoam. Warning Notice and 2002 Dock Application On January 22, 2002, the EPD visited the PHPB Property in response to a complaint about unlicensed docks. Julie Mitchell (then known as "Julie Karczyk"), a Natural Resources Specialist with the County was present on the property during the visit to conduct an inspection. In a Case Summary admitted into evidence, Ms. Mitchell documented the visit with an employee of the State Department of Environmental Protection. The two visitors asked the manager of the property to provide a copy of permits and licenses for the docks on site. If he could not provide them he was advised of the necessity to apply for them. At the time of visit, there were four finger piers composed of floating docks on the PBPH side of the Basin. The four piers protruded into the Basin at an angle similar to the angle of the finger piers shown in the drawings approved by the Proposed Permit. These four docks (from north to south) had lengths of 117, 130, 150 and 150 feet respectively and were each 7.5 feet wide. The northernmost dock was separated from the second dock (the dock immediately to its south) by 52 feet; the second dock was separated from the third by 60 feet; and the third from the fourth by 55 feet. There was also a fifth structure. It may have been a fifth finger pier, but, because of its width which is substantially more than the 7.5 feet, see Petitioners' Ex. 114F (an aerial photograph with a "fly date" of January 2002), it is more likely to have been "work platforms to construct the docks." Tr. 114. Whatever its function, the fifth structure did not protrude into the Basin as far the four others. It was "[r]ight up against the seawall." See id., Petitioners' 125 at 5, and tr. 114. Ms. Mitchell checked the County records and could not locate a license or permit for finger piers or other structures in the Basin. No evidence of a license or permit was provided by either PBPH or any of its tenants. The status of the finger piers and floating docks today remains the same: unlicensed and unpermitted. The County required Broward Yachts as the tenant of the PBPH Property to submit an after-the-fact permit and license application if it wished to keep the structures. Broward Yachts submitted its application for an ERP and Environmental Resource License ("ERL") to the County (the "2002 Dock Application") on April 16, 2002. In the meantime, Broward Yachts installed an additional finger pier in the Basin angled from the seawall just as the four piers observed by Ms. Mitchell. The installation occurred without County authorization. On May 2, 2002, the County issued Warning Notice No. WRN02-0125 (the "Warning Notice"). Directed to both Broward Yachts and PBPH, the Warning Notice contains one count. See Petitioners' Ex. 7. The count reads as follows (bold type in original): Respondent: Broward Yachts, Inc. Respondent: Palm Beach Polo Holdings, Inc. Violated section 27-333(a)(1), BCC, which states: "No person shall conduct or cause to be conducted mangrove alteration, construction, demolition, dredging or filling in regulated aquatic or wetland resources, except in accordance with a currently valid environmental resource license issued by DPEP and all general and specific license conditions therein." By: constructing docks and installing pilings without a valid DPEP Environmental Resource License. Corrective Action: The respondent must apply for an after- the-fact license from the Department for the dock construction and piling installation. The license will not be issued until the respondent obtains a South Florida Water Management District Right-of-Way permit for the pilings located within the Dania Cut-off Canal. Correct within 14 days of this notice. Id. The 2002 Dock Application was filed on April 16, 2002 (prior to the Notice of Warning.) In the meantime and subsequent to the Notice of Warning, the County conducted a review of the 2002 Dock Application. The 2002 Dock Application The 2002 Dock Application was signed by Paul Bichler of Tri County Marine. Mr. Bichler and his company are listed on the application as the "Entity to Receive Permit," see Respondents' Ex. 3 at 3-4, and Bill Thomas of Approved Permit Services, Inc., is listed as the "Agent Authorized to Secure Permit." Id. The owner of the land is shown as Richard Arnold, General Manager of Broward Yachts. Mr. Arnold signed the application in order to give Mr. Thomas the authority to act as the agent of Broward Yachts in securing the permit. There is no mention of PBPH in the application. Part 8 of the 2002 Dock Application requires the applicant to describe in general terms the proposed project, system or activity. Filled in is: "Install Floating Docks!" Id. at 3-5. No other description is offered. The application contains as attachments a map of the site showing the Port Laudania Property and a drawing of Parcel A at the site (the PBPH Parcel.) The drawing shows six finger piers to be installed. Five are attached to the western seawall of the Port Laudania Property at such an angle so that they lie in the Basin in a southwesterly direction (much the same as the four finger piers observed in January of 2002 by Ms. Mitchell). The lengths of the five range from 150 to 190 feet. The fourth and fifth finger piers are proposed to be 180 feet and 155 feet in length, respectively. The sixth pier lies roughly parallel to the southern terminus of the bulkhead on the PBPH Parcel and extends into the mouth of the Basin. Unlike the other five, the sixth structure is not attached to the western seawall. To the south of the bulkhead and with no attachment to the bulkhead, it runs 240 feet in length. At its eastern end, it overlaps the boundary between the Basin and the Dania Cut-off Canal and protrudes into the canal. Id. at 3-9. The drawing also depicts pilings associated with each of the six structures. The floating docks applied for in the 2002 Dock Application were to be made out of Styrofoam and wood. Permitting Criteria/County Review The County's evaluation and processing of the 2002 Dock Application was conducted appropriately pursuant to the Delegation Agreement. Section (1) of Florida Administrative Code Rule 40E-4.30210/ (the "ERP Additional Conditions Rule") requires an applicant to "provide reasonable assurances that the construction, alteration, operation, maintenance, removal, and abandonment of a system" will meet conditions contained in subsections (a) through (d).11/ For systems located in, on, or over surface waters that are not Outstanding Florida Waters, such as the finger piers and floating dock systems proposed by PBPH, reasonable assurances must be provided that the activity "will not be contrary to the public interest [the "Public Interest Test"] . . . as determined by balancing"12/ seven criteria listed in the ERP Additional Conditions Rule: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangerment or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Of the seven criteria, above, the two deemed most relevant and determinative for the EPD in processing the 2002 Dock Application were 1., and 3., that is, whether the activity will adversely affect public safety, the property of others, and navigation. The County considered the proposed sizes, locations and configuration of the docks as shown in the drawing attached to the application. It had no navigational experts on staff and did not consult with outside navigational experts. Nonetheless, the County considered the nature of the use and whether it would adversely affect safety and navigation. The County also considered an objection to the location of certain pilings and a "future floating pier along the south edge of the basin at Port Laudania." Petitioners' Ex. 8 at 4. The objection had been lodged by the Port Everglades Pilot's Association in a letter dated May 1, 2002: Port Everglades Pilots are responsible for insuring the maximum level of safety of commercial vessels transiting the water of Port Everglades and Port Laudania. * * * I am writing to you in reference to some pilings that have been driven by Broward Marine for what appears to be a future floating pier along the south edge of the basin at Port Laudania in Broward County, Florida. This is the basin that is shared by Broward Marine and G&G Shipping and located within the City of Dania Beach. These pilings are affecting the safe navigation of commercial vessels that have already been using the basin at Port Laudania for many years. Vessels docked at this new pier will pose additional risk to navigation. * * * I would like to go on record stating that the location of these pilings and potential pier is not satisfactory as it hinders the navigation of commercial vessels using the basins at Port Laudania. Id. The letter is signed by Captain James J. Ryan, Managing Pilot for the Port Everglades Pilots' Association. The County acknowledged receipt of the application in a letter dated August 16, 2002, and informed Broward Yachts' agent that the "application for license is incomplete." Petitioners' Ex. 8. The letter requested prompt submission of the information listed on an attached sheet and warned that failure to submit it within 60 days of the request could result in denial. Two items were found omitted or incomplete in the application. The first was a "South Florida Water Management District right-of-way permit for the pilings located within the Dania Cut-off Canal." Petitioners' Ex. 8 at 2 of 3. The second was a response to the navigation issue posed by the Port Everglades Pilot Association. Id. The County's letter advised that upon a showing of resolution of issues posed by the omissions, the Department would process the application as an ERP since the applicant was allowed by a state administrative rule to apply for an ERP concurrently with an ERL. To that end, the letter requested payment of an additional $700 fee. Id. Four other items were also requested for submission. Five months later, Broward Yachts' agent wrote Ms. Mitchell listing seven responses as "the additional information you requested." Petitioners' Ex. 9. With regard to Item 2, the letter states: 2. I am working with Dan Boyer who is handling the Right of Way permit @ SFWMD, I am also addressing same issue with him, if I can demonstrate that a boat when moored at the proposed dock will not extend more than 25% into the canal, he will recommend to the Board of Governors that the project be approved. I am waiting for a signed and sealed survey to show the exact width of the waterway at this location. Petitioners' Ex. 9. With regard to Item 3, the agent responded, "[c]heck enclosed." The letter did not respond to all the requested information. For example, with regard to requested information concerning the anticipated use of the dock proposed within the Dania Cut-off Canal, whether boats would be moored on both its sides, and the anticipated length and draft of the boats, the agent responded, "I will need to get back to you about this one!" Id. Together with a memorandum dated July 21, 2003, the agent submitted revised drawings for the permit (the "2003 Revised Dock Application" or the "Revision"). The Revision removed any portion of the structures or pilings from the Dania Cut-off Canal in order to avoid the requirement for a SFWMD Right-of-Way Permit. Instead of the six finger piers shown in the 2002 Dock Application, the Revision showed seven. Six were similar to the five that angled into the Basin in a southwesterly direction from where they touched the western seawall. The six piers ranged from 120 feet in length to 150 feet in length. The seventh was similar to the sixth finger pier in the 2002 Dock Application but was depicted as being only 60 feet in length. It no longer protruded into the Dania Cut-off Canal. See Petitioners' Ex. 10 at 2. A memorandum to the file dated August 11, 2003, shows that Ms. Mitchell faxed the drawings in the 2003 Revised Dock Application to the Port Everglade Port Association. The memorandum reported that Captain Ryan responded by saying "he no longer had any objections to the project because the structures had been removed from the ROW [of the Dania Cut-off Canal]." Petitioners' Ex. 11. The memorandum also reported that Captain Ryan stated that there still may be navigational and safety concerns with the proposed pier lengths and locations, and that there may be special circumstances for ships wanting to use the basin such as, navigation during slack tide only, daylight only, and other factors that would exacerbate the concerns. Six weeks or so later, Ms. Mitchell signed a letter from the County. The letter, dated September 29, 2003, advised Broward Yachts that the additional information submitted in response to the January 2002 request had been received. It also advised that the project required an Environmental Resource License (in addition to the ERP) and that the application for such a license had been received. To fully evaluate the project, additional information was needed. This second request for additional information consisted of one item: [1] A Cross Access Agreement (attached), recorded on October 27, 1987, states that "the entire inlet be available to the owners of the other parcel for the purposed (sic) of ingress and egress." The Department has received objections from the adjacent property owner that the proposed docks, specifically the most southern 150-foot-long dock, may hinder the navigation of commercial vessels using the basin. Please provide evidence that the proposed docks will not negatively affect the safety and navigation of vessels using the basin. Petitioner's Ex. 12, Completeness Summary, Environmental Resource License Application at 2 of 2, (emphasis added.) The additional information requested was not provided by Broward Yachts or any other party. On October 6, 2003, Ms. Mitchell forwarded a copy of the Cross-use Easement to the County Attorney's Office and asked for it to be reviewed "to confirm that the [easement] pertains to both facilities [the applicant's and G&G's] and that G&G has a basis for their objection." Petitioners' Ex. 13. The objection by G&G was expressed as: "the most southern proposed finger pier will hinder [G&G's] ability to safely navigate their vessels." Id. Attached is a drawing that depicts seven docks. Opinion of the Broward County Attorney's Office In response to Ms. Mitchell's request, an opinion of the Broward County attorney's office was issued on October 31, 2003. The opinion addresses two questions: first, does the Cross-use Easement pertain to both facilities operated by Broward Yachts and G&G; and, second, does G&G have a basis for its objection. Both questions were answered in the affirmative with the following elaboration on the second question: The Easement includes granting a non- exclusive right to the successors of Port Denison, Inc. to use "all or any portion of the Property . . . for ingress and egress over and across the inlet as described in Composite Exhibit C. . ." The Property referred to in Exhibit A includes all of Parcels I and II. Composite Exhibit C is made up of a sketch and legal description of the easement area, with each Parcel having its own description and sketch. The physical structures referred to that limit the easement are the wetface of the bulkhead and the boat hoist structure. The easement rights granted are not similarly limited by reference to docks or piers that may have existed around the time that the easement was granted. This reading of the easement is consistent with the intent of the parties, as clearly reflected in the last "Whereas" clause which reads: " . . . it is to the mutual advantage of the present and future owners, tenants, invitees, etc. that the entire inlet be available to the owners of the other parcel for the purposes of ingress and egress." Since G&G Shipping's objection is related to the use of the inlet for ingress and egress with reasonable reference to navigation safety, and G&G Shipping accommodates uses that it does not anticipate will interfere with such activities, its objection to the license application has a basis in its easement rights. While the additional correspondence from Broward Yachts dated October 11, 2003, refers to an undated photo showing floating docks that are asserted to exist "around the time that the agreements were drawn-up for cross access," this photo doesn't control or limit the terms of the Easement, which grants the use of the entire inlet to both parties. Petitioners' Ex. 16 at 1-2. Another RAI On December 16, 2003, the County sent another request for information (RAI) to Broward Yachts (the "December 16, 2003 RAI." The request stated, "[y]our response dated October 14, 2003, does not adequately address the navigational and safety concerns stated in our letter [of September 29, 2003]." Petitioners' Ex. 17. The December 16, 2003, RAI referenced the County attorney's October 31, 2003, Opinion which "concluded that G & G Marine, Inc., does have a legal basis for their objection to the docks." Id. The December 16, 2003, RAI concluded: [T]he Department has not received reasonable assurances that the proposed docks will not negatively affect navigation and safety, nor have we received a response regarding the objections. It is the intent of this letter to inform Broward Yachts, Inc. (applicant) and Mr. Bill Thomas (agent) that the license application will be closed, pursuant to Section 27- 55(d)(4), if all requested information is not provided within ten (10) days of the receipt of this letter. Id. Broward Yachts requested an additional 90 days to provide the information. The request was granted. A second request to extend the time for providing the information another 90 days was denied by the County. The County Holds its Position Correspondence dated July 8, 2004, from Larry Zink, Esquire, requested reconsideration of the County's October 31, 2003, Opinion. The County responded in a letter dated July 21, 2004. See Petitioners' Ex. 22. The July 21, 2004, letter refers to "additional information, such as Mr. Denison's Affidavit and references to Florida case law," id. and then concludes: After consideration and based upon the Easement, Broward Yachts' letter of October 11, 2003, [Mr. Zink's] letters of May 5, 2004, May 21, 2004, and July 8, 2004, Mr. Denison's affidavit, Florida law, and G&G Shipping's objections dated November 5, 2003 and April 13, 2004, the conclusion that G&G has a basis for its objection to the Project is still correct . . . . Id. The July 21, 2004, letter addresses Florida Law with regard to the Cross-Use Easement: Florida Law: You have asserted that "[t]he Florida Court's have held that to determine the scope of an easement the Court's attempt to ascertain the intent of the parties in light of the surrounding circumstances at the time the easement was created," referencing the cases of Hillsborough County vs. Kortum and Florida Power Company vs. Silver Lake Homeowners Assn. However, the following more completely summarizes the relevant case law standards: The construction or interpretation of an easement is not evidentiary; it is a matter of law. Hillsborough Co. v. Kortum, 585 So.2d 1029 (Fla. 2nd DCA 1991), rev. denied, 598 So.2d 76 (Fla. 1992). The determination of the extent and nature of an easement granted or reserved in express terms by deed depends upon a proper construction of the language of the instrument, for an examination of all of the material parts thereof, and without consideration of extraneous circumstances. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (1940). An easement holder has the right to do what is reasonably necessary for the full enjoyment of the easement, but the right must not be increased to any greater extent than reasonably necessary and contemplated at the time the easement was created. Crutchfield v. F.A. Sebring Realty Co., 69 So.2d 328 (Fla. 1954). However, rights of the owners of an easement are not absolute and unlimited. The owner of the servient estate may use [the] land, including the easement, in such a way that will not interfere with the easement owner's right of passage. Tortoise Island Communities, Inc. v. Roberts, 394 So.2d 568 (Fla. 5th DCA 1981). (String citations have been omitted for brevity.) As you may know, the Circuit Courts of Florida have exclusive original jurisdiction over all actions involving title and boundaries of property. See Section 26.012(2)(g), Florida Statutes. Therefore, it is the Seventeenth Judicial Circuit Court that has jurisdiction and authority to determine the relative title interest rights of Broward Yachts and G&G in relation to the Project. The Office of the County Attorney respectfully declines to act in a role which is the proper jurisdiction of that Court. Within the limited scope of the previous and instant reviews, it is merely apparent that G&G objects to the Project and holds a title interest which, on its face, could be negatively affected by the Project. Therefore, it has a basis for its objection. Id., paragraph 2, at page 2 of 3 (emphasis added.) The County determined that Broward Yachts had not provided reasonable assurances that the Project would not adversely affect safety and navigation and would not violate the Cross-Use Easement. In light of the determination, the County sent a memorandum on July 21, 2004, see Petitioners' Ex. 23, requesting such assurances (the "July 21, 2004, RAI"). The July 21, 2004, RAI recognized that the issue with regard to the Cross-Use Easement was the subject of litigation between Broward Yachts and G&G Marine, but in the meantime requested reasonable assurances with regard to the navigation and safety issues or "have your client amend its application to resolve this concern." Id. As with the December 16, 2003, 10 RAI, the July 21, 2004, RAI was required to be answered in 10 days. The County hoped that a response would provide guidance from a navigational expert that the new docks would not affect the ability of other vessels to come in and out of the Basin. Denial and Petition for Review By the end of January 2005, the ten-day period for submitting additional information relative to the 2003 Revised Dock Application had expired. No information relative to safety and navigation concerns or compliance with the Cross-Use Easement had been submitted. By letter dated January 31, 2005 (the "Application Denial"), the Broward County EPD announced its decision to deny the application based on a lack of "reasonable assurance that the proposed docks will not negatively affect navigation and safety, nor violate the Cross-Use Easement . . . ." See Joint Pre-hearing Stipulation, para. 7 at 13. The County's intent in issuing the Application Denial was to deny both the ERL and ERP. The parties stipulated to what happened next: Broward Yachts filed a Petition for Review of Final Administrative Determination, Environmental Resource License Application No. DF03-1121, Environmental Resource Permit Application No. 06-0194386-001 (the "Administrative Review Petition") with EPD on February 7, 2005, challenging the denial of its "license and permit applications." The Administrative Review Petition invoked the procedures of Chapter 27, BCC. Joint Pre-hearing Stipulation, para. 8 at 13. The Administrative Review Petition did not invoke the procedures of Chapter 120, Florida Statutes. Pursuant to an internal procedure, the Administrative Review Petition was reviewed by the Department Director. After an independent review, the Department Director upheld the denial. That decision was communicated to Broward Yachts in a letter dated March 11, 2005, signed by Eric Myers, Director of the Broward County EPD. See Petitioners' Ex. 41. The March 11, 2005, letter proposed a compromise that related to an aerial photograph taken at roughly the time of the submission of the 2002 Dock Application. The photograph showed four finger piers ranging in length from 130 to 150 feet. The County offered to permit such a configuration if Broward Yachts modified its application. Broward Yachts was apparently unwilling to do so. Broward Marine Involvement The denial of the 2002 Dock Application was directed only to the application filed by Broward Yachts. Likewise, the Administrative Review Petition was filed solely by Broward Yachts. In March of 2005, however, Broward Marine took over the possession and operation of the PBPH Property from Broward Yachts. It also purchased the assets of Broward Yachts, including the 2002 Dock Application and the 2003 Revised Application. Response to the County's Proposal In June of 2005, the County met with representatives of Petitioners to discuss acceptable dock configurations. Petitioners advised that they would accept a configuration consisting of four docks extending into the Basin at a southeasterly angle and that they would be amenable to a fifth dock parallel and immediately adjacent to the southern portion of the PBPH bulkhead. The County presented the proposal to Mr. Zink, counsel for Broward Yachts, Broward Marine and PBPH in a letter dated July 11, 2005. Mr. Zink responded by letter dated July 14, 2005. The letter references: "Broward Yachts, Inc. - Floating Docks" even though at the time the 2002 Dock Application and the 2003 Revised Dock Application had been assigned to Broward Marine. The one paragraph letter reads: I am in receipt of Michael Owens July 11, 2005 letter regarding the above matter. Though my client does not agree the 2002 aerial photos are historically representative of the number of floating docks, Broward Yachts is submitting herewith a revised drawing dated July 13, 2005 which accepts what is proposed in paragraph two (2) of Mr. Ownens July 11, 2005 letter. Petitioners' Ex. 54, (emphasis added.) The revised drawing, that was neither signed nor sealed, was attached to Mr. Zink's letter. It shows five floating docks "ALL 7'6" WIDE," id. at second page, four of which are angled into the Basin in a southeasterly direction, none of which are more than 150 feet in length. It also shows a fifth dock that lies immediately adjacent to the eastern seawall of the bulkhead on the PBPH property so that it does not angle into the Basin at all. It is 200 feet long and stops short of the south end of the bulkhead so as to be well clear of the Dania Cut-off Canal. Mr. Zink's acceptance of the proposal on behalf of Broward Yachts did not, however, lead to a resolution. The County asked for two additional matters: signed and sealed drawings from an engineer and that PBPH, as the owner of the property, become the applicant. PBPH Steps In Through a letter dated October 20, 2005, Mr. Zink agreed to the two additional demands of the County. The letter enclosed "sealed drawings for the above applications." Respondents' Ex. 6. The applications were referenced in the letter as ERL and the ERP for "Broward Yachts - Floating Docks," but the letter stated, "[a]s per your E-mail of August 25, 2005, a Revised Application identifying Palm Beach Polo Holdings, Inc. as the property owner will be submitted to you directly by my client." Id. The signed and sealed drawings that were submitted did not reflect the proposal made by the County and agreed to by Mr. Zink on behalf of his client in July of 2005. The drawings showed one finger pier immediately alongside the western seawall of the bulkhead and five finger piers composed of floating docks that angled into the Basin. The signed and sealed drawings showed six finger piers instead of five and five finger piers that angled into the Basin instead of the four envisioned by the agreement finalized by Mr. Zink's letter on July 14, 2005. In a letter dated November 11, 2005, and received on November 16, 2005, that was characterized by Mr. Zink as "a follow up on my October 20, 2005, letter to [the County]," Petitioner's Ex. 7, Mr. Zink enclosed two documents: "1) Original executed Application on behalf of Palm Beach Polo Holdings, Inc. 2) Drawing prepared by Frank L. Bennardo, P.E., depicting the docks." Id. The letter dated November 11, 2005, was not accepted for reasons outlined in an e-mail message from Julie Mitchell to Eric Myers. See Petitioners' Ex. 69. In the wake of the message, the County continued to process the 2003 Revised Dock Application. In a letter dated December 16, 2005, with the same reference line used in his earlier correspondence ("Re: Broward Yachts, Inc. - Floating Docks"), Mr. Zink submitted "(2) Revised Drawings prepared by Frank L. Bennardo, P.E., Inc. dated 11/30/05 depicting the five (5) finger piers as per the July 13, 2005, conceptual drawing approved by DPEP." Petitioners' Ex. 75. As represented by Mr. Zink, the drawings matched the configuration proposed by the County in its letter of July 11, 2005. At this point in the series of events initiated by the Notice of Violation in 2002, the parties would have been justified in thinking that an agreement had been reached, that the ERL and ERP could be issued and that all files on the matter of the Broward County EDP could be successfully closed. Mr. Lewis on behalf of Broward Yachts expressed the sentiment at hearing: [I]n the course of that same period, [Mr. Ganoe] was concerned about turning vessels where the fifth dock was. And we put a buoy in the basin where the length of a boat extending beyond that pier would be, he had given us a radius of what he wanted. We had McLaughlin Engineering take that, and I can't remember how many feet that he wanted clear in that area, plotted it on a drawing, went over it with him, thought we had an agreement. Tr. 181 (emphasis added.) Between the County's July 2005 proposal and Mr. Zink's December 16, 2005, letter that appears to have finalized the proposal's acceptance, however, a disruptive event occurred. The event caused destruction in the Basin, halted businesses on both of its sides and stressed the resources of the County: Hurricane Wilma. Hurricane Wilma Hurricane Wilma destroyed most of the docks and pilings in the Basin. In the wake of the destruction, Broward Marine submitted an application to the County for the issuance of a general license (the "General License") to repair and re- install pilings and ramps. The difference between projects that require an ERL, such as the project at issue in this proceeding (which required both an ERL and an ERP), and those that require only a general license was explained by Ms. Mitchell at hearing: "A general license is for smaller projects, specifically for docks where the total overwater area is less than 500 feet . . . ." Tr. 386. A Broward County general license was also distinguished from the ERP at issue in this case. Projects for which the overwater area is less than 1,000 feet are not subject to ERPs. The general license was approved in a letter issued by EPD's Wetlands/Uplands Resources Section: This letter is to inform you that your request for a General License has been granted. General License No. GL- DAN0512-029 authorizes the installation of ten (10) pilings and five (5) floating ramps, adjacent to 750 NE 7th Avenue, in the City of Dania Beach. Respondents' Ex. 9 at 9-2. The General License authorized pilings and ramps only; it did not authorize floating dock structures such as finger piers. The approved project description was attached to the January 6, 2006, letter. It shows the approved project to be pilings installed within the Basin at certain distances from the seawall. For the northernmost four set of pilings the distances range from 115 feet to 150 feet. The distance from the seawall of the fifth set of pilings (the southernmost set that corresponds to the fifth finger pier applied for in the ERP application) is 75 feet, a distance significant to safety and navigability. Notwithstanding that the General License did not authorize finger piers, Broward County installed finger piers in the Basin. The installation of finger piers was done without an ERL or an ERP. When asked why a Notice of Intent was not issued that reflected the parties' putative agreement at the end of 2005, Ms. Mitchell replied, "To be honest, I don't recall because there was so much settlement going on outside of our department with the attorneys, I don't remember exactly why it ended up going [to hearing.]" Tr. 397. The record is unclear as to why a Notice of Intent was not issued. It may have been because of the interruption and destruction of Hurricane Wilma and the confusion it caused when country resources were diverted to other pressing matters. It may have been because of lack of communication between all of the parties and their attorneys. Or, it may have been because of objections from Broward Marine that are referenced in Petitioners' Ex. 69 as to the November 16, 2005, submission of information. The objections are counter to Mr. Zink's letter of December 16, 2005, and inconsistent with Mr. Lewis' recall of having reached an agreement in mid-2005. Whatever the reason, a Notice of Intent for an ERL and an ERP authorizing finger piers and floating docks as referenced in Mr. Zink's December 16, 2005, letter was not issued. In March of 2006, the 2002 Dock Application and the amendment to it in the 2003 Revised Application proceeded to hearing before a Broward County Hearing Examiner because of their denial by the County. The March 2006 Hearing, the Final Order and the Omnibus Order The hearing was held on March 30, 2006. There were two parties to the proceeding: Broward Yachts, Inc., as the Petitioner, and Broward County Environmental Protection Department. Aside from the County, none of the parties to this proceeding13/ (DOAH Case No. 08-1393) were parties to the proceeding before the Hearing Examiner. In his Final Order, the Hearing Examiner described those who participated or were present: At the hearing, the Environmental Protection Department was represented by Michael Owens, Esquire, who presented the testimony of Julie Krawczyk, Natural Resource Specialist II. The Petitioner was represented by Larry Zink, Esquire, who presented the testimony of Glenn Straubb [sic], the President of Palm Beach Holdings, Inc. Also in attendance at the hearing was Steve Ganoe, President of G&G Marine, Inc. ("G&G") Respondents' Ex. 10. The Hearing Examiner entered the Final Order on June 5, 2006. The Final Order found that "these docks, is some shape or form, have existed in this area for over twenty one years and have been used for substantially the same purpose for those years." Id. at 10-2. The order further found "that no competent substantial evidence was presented that would support or warrant the denial of the license and permit sought by the Petitioner [Broward Yachts] to maintain its existing docks." Id. at 10-3. The order concluded, "The administrative decision denying the license/permit to maintain the docks is quashed and the matter is remanded to EPD to take appropriate action in accordance with the terms of this Final Order." Id. The order is based on the following finding: The only relevant standard to this proceeding . . . is . . . whether the docks will adversely affect public safety or welfare or the property of others. No evidence was presented that the docks, which have been in existence since 1985, have ever caused an accident or that they impede G&G's reasonable use of the easement. Moreover, while the EPD does have the right to regulate these docks and the navigable water upon which the docks rest, the easement area is not generally travelled by the public and more or less serves as an entrance to only two businesses, G&G and that of the Petitioner. Id. Broward County filed a motion for reconsideration of the Final Order. G&G filed a motion for rehearing and/or reconsideration as a "nonparty." See Respondents' Ex. 11. Both motions were considered in an order entitled "Omnibus Order Granting in Part and Denying in Part Post Hearing Motions." Respondents' Ex. 12. The County's motion was denied. The motion of G&G's was granted in part. The motion was found to request relief not inconsistent with the Final Order. "Specifically, G&G requests that the Final Order prohibit the installation of additional docks and prohibit increasing the size of the existing docks." Id. at 12-2. The Omnibus Order grants the following relief: Petitioner may maintain the five existing docks and repair and replace them, but may not do so in a manner that causes any of the docks to protrude at a greater length or distance into the waterway. Additionally, Petitioner may not construct or maintain any docks other that the five existing docks. Id. at 12-2, 12-3. Neither the Final Order nor the Omnibus Order contains a finding of fact as to the configuration of docks at the time of the hearing conducted by the Hearing Examiner. There is evidence in the record of this case (DOAH Case No. 08-1393) that the five docks existing on March 30, 2006, were configured consistently with the pilings authorized by the General License, that is, they had lengths beginning with the northernmost dock of 135, 135, 150, 150 and 75 feet, respectively. At the time of the final hearing in this proceeding, moreover, the docks were present in the Basin in approximately the same configuration as existed in March of 2006. The 2006 and the 2007 NOIs On October 23, 2006, the County issued a Notice of Intent (the "2006 Notice of Intent") to issue a combined permit/license for the construction of the five docks ranging from 132 feet to 192 feet in length. The 2006 Notice of Intent was issued solely because the County believed it was required by the Hearing Examiner's Final and Omnibus Orders. See Tr. 405. The configuration of docks authorized by the 2006 Notice of Intent resembled the July 2005 Proposal accepted by Mr. Zink on behalf of Broward Yachts: four docks angled into the Basin in a southwesterly direction with one additional dock parallel and adjacent to the seawall. The County did not conduct any evaluation of its own between the dates of the Hearing Examiner's Final and Omnibus Orders as to whether the configuration authorized by the 2006 Notice of Intent had unacceptable impacts to navigation and safety. The draft permit attached to the 2006 Notice of Intent contains several sets of conditions. DEP General Conditions, Broward County EPD General Conditions and ERP and ERL Specific Conditions ("Specific Conditions"). The Specific Conditions were included under the County's authority to impose conditions necessary to carry out the intent of the ERP and ERL permitting regulations. Specific Condition 18 is "Mooring of vessels with lengths exceeding the length of the permitted structures is prohibited." Respondents' Ex. 13 at 13-17. The purpose of including Specific Condition 18, as testified by Eric Myers, Director of the Broward County EPD at the time the 2006 Notice of Intent was issued, "was to make sure that . . . adequate navigation was maintained within the Basin." Tr. 560. G&G challenged the 2006 Notice of Intent by filing a petition for formal proceedings with EPD seeking a clarification in interpretation with regard to the lengths of vessels to be moored in the PBPH side of the Basin vis- à-vis the length of the permitted structures. Broward Marine also filed a Petition for Formal Proceedings challenging the 2006 NOI. In furtherance of discussions with the County, Broward Marine, by letter dated June 26, 2007, submitted four surveys for consideration by the County. The first purported to show the dock configuration existing after Ms. Mitchell's January 2002 visit but before the submission of the Permit Application; the second purported to show the dock configuration on December 11, 2003; the third showed the dock configurations sought by Broward Marine; and the fourth showed all configurations overlapping. None of the surveys depicted the dock configuration existing on January 22, 2002, the date of the Ms. Mitchell's visit, which was the configuration the County had requested Broward Yachts to submit for approval. The County did not transmit the G&G petition or the Broward Marine petition to DOAH. Instead, on or about August 23, 2007, EPD issued another Notice of Intent to Issue Permit/License (the "2007 NOI") to PBPH. The 2007 NOI identifies the proposed project as the Broward Yachts Marine Facility, with permit No. 06-0194386-001 and License No. DF03-1121 and lists the Permittee/Licensee as "Palm Beach Polo Holdings, Inc." Respondents' Ex. 14 at 14-9. With respect to the factors considered by the County in issuing the 2007 NOI, it provides: The Department reviewed the information presented in the petitions, the Hearing Examiner's Final Orders, and surveys provided by Broward Marine with a letter dated June 25, 2007, and as a result has reformulated the draft permit and agency action. Respondents' Ex. 14 at 14-3. The 2007 NOI also referred to an earlier NOI and draft permit issued on August 2, 2007. On August 8, 2007, EPD was notified of typographical errors in the August 2, 2007, NOI. As a result of the typographical errors and other previous errors, the 2007 NOI stated, "this Notice hereby supersedes the October 23, 2006, and August 2, 2007, Notices of Intent to Issue and draft permits/licenses." Id. The Proposed Permit and the draft Environmental Resource License attached to the 2007 NOI allows PBPH to construct five floating finger piers as detailed in a section of the Proposed Permit entitled "PROPOSED PROJECT DESIGN," as follows: The proposed project is to construct five (5) floating finger piers in an existing privately-owned marina basin. From north to south, the finger piers shall have the following sizes: (1) 7.5-foot-wide by 122-foot-long pier; (2)7.5-foot-wide by 135.8-foot-long pier; (3) 7.5-foot-wide by 150.5-foot- long pier; (4) 7.5-foot-wide by 150.5- foot-long pier; and (5) 7.5-foot-wide by 152.6-foot-long pier. All five (5) finger piers shall be placed sixty-five (65) feet apart and angled in a southeasterly direction from the existing seawall, as depicted on the attached drawing. The total over-water area of the structures shall be 5,378.25 square feet Respondents' Ex. 14 at 14-10. The dock configuration authorized in the Proposed Permit is the same dock plan depicted in Exhibit C to the June 25, 2007, letter from Broward Marine to the County. The County issued the 2007 NOI, revising the dock configuration from what it had authorized in the 2006 NOI, due to objections from Broward Marine that the configuration in the 2006 NOI was not consistent with the Final Order and the Omnibus Order. The Proposed Permit also eliminated Specific Condition 18 that was in the 2006 NOI. It did not impose any restriction or limitation on the length of vessels that may be moored at the proposed finger piers, and PBPH indicated at hearing that it would moor vessels alongside the finger piers whose lengths exceeded the piers.14/ In addition to elimination of Specific Condition 18, there were other significant differences between the 2006 NOI and the 2007 NOI. For example, the 2007 NOI allows all five finger piers to be placed 65 feet apart and angled in a southeasterly direction from the seawall. In contrast, the 2006 NOI provided that the southernmost pier of the five would be placed immediately parallel to the seawall so that it did not jut out at all into the Basin. The 2007 NOI contemplates that the structure of the finger piers would be more permanent. The 2003 Revised Application had sought floating docks, of the type existing at the time made of Styrofoam and wood, as opposed to fixed piers. The concrete pilings and the concrete tub floating docks contemplated by the 2007 NOI are more permanent than the existing wood pilings and the wood and Styrofoam docks. Eric Myers, Director of EPD at the time, signed the 2007 NOI. When he did so on August 26, 2007, he believed that the issues regarding safety and navigation that had been raised by G&G and C-Term had been resolved "based on the advice of staff." Tr. 529. Historical Configuration of Docks in the Basin PBPH contends that the finger pier and dock configuration authorized by the 2007 NOI is consistent with historical lengths and configurations of piers and docks in the Basin. The evidence establishes that the length, number, configuration and locations of docks within the Basin varied greatly over time. As Mr. Straub testified in response to a question about the dock configuration when the property was acquired by PBPH, "Whatever we wanted them to be. It could change from day-to-day and month-to- month." Tr. 582. Aerials taken by Broward County dating back to 1998 demonstrate that the docks in the Basin ranged in number, length and location until 2006 when docks were installed following issuance of the General License. Until 1998, there were many different configurations. Since 2006, the number, lengths, and sizes of the docks have remained fairly consistent to the time of hearing. In the January 2007 Broward County aerial photograph, the five docks (from north to south) have lengths of 151.5, 136, 156, 156 and 88 feet, respectively. These lengths are roughly similar to the piling configuration authorized by the General License.15/ Safety and Navigation16/ The multiplicity of factors that affect navigation in the Dania Cut-off Canal "makes maneuvering extremely tricky" in the canal. Tr. 1574. These same factors affect Basin ingress and egress of G&G vessels and other vessels that have access to the Basin. Wind near the Basin comes from any direction. The predominant wind in the area of the Basin is out of the east/southeast at average speeds of 10-12 knots. From time-to-time, of course, the wind shifts. When cold fronts come through the area, for example, they generally come from the west/northwest and the wind blows mainly from the north. Strongest winds associated with a cold front are usually "anywhere from 20 to 30 knots. Constant winds with a good cold front, usually 15 to 20 knots." Tr. 1260. Direction and strength of wind affects stability and handling capacity of vessels entering and exiting the Basin. The bow of the vessel is affected the most. In the front, it is the narrowest part of the vessel, the least heavy, and has the least draft (depth in the water). Vessels entering and exiting the Basin are affected by leeway defined by Mr. Danti at hearing: "[L]eeway is the physical amount of sideways motion that is going to be activated on a vessel by the wind. It is the amount of side motion created by the wind on a vessel." Tr. 1268-9. Leeway varies depending on a number of factors, among them, the strength and direction of the wind, the angle of the vessel, and its draft. Ocean-freight shipping vessels have different handling characteristics from yachts. The effect of leeway on vessels in the Basin varies from vessel to vessel. Typically, the effect of leeway is greater on G&G vessels than on the PBPH vessels. The current in the Dania Cut-off Canal is 2.0 to 2.5 knots. The current in the canal in the immediate vicinity of the Basin has significant effects on the maneuverability of vessels. Because of the current in the canal, it is advisable for vessels entering and exiting the Basin to perform the majority of turns and other maneuvers in the Basin rather than in the canal. Another factor that makes turning maneuvers by G&G vessels safer in the Basin is boat traffic in the Dania Cut-off Canal. That traffic has increased greatly in recent years, as Mr. Steele testified. Vessels exiting the Basin, furthermore, must yield to vessels in the canal. Boat traffic is not visible to the typical G&G vessel until the vessel has committed to exiting the canal. Once committed, the G&G vessel cannot stop and wait for traffic to pass. It must complete the exit maneuver. It is much better, therefore, for the G&G vessel to turn in the Basin before committing to an exit so that it can emerge bow-first with a better view of canal traffic rather than emerge by backing out. Another factor that makes turning in the Basin safer is the Harbortown Marina, located directly across the canal from the Basin. There is a greater chance for collision the farther the G&G vessels must go into the Dania Cut-off Canal before beginning maneuvers necessary to head out to sea. Vessels will have to go closer to the southern side of the canal, that is, farther into the canal, when emerging from the Basin if they back out and turn in the canal rather than turn in the Basin before heading out toward the Atlantic Ocean. The Basin has a width of 320 feet at the north end and a width of 323 feet at the south end. Mr. Danti fashioned an "Unobstructed Line," depicted on Petitioners Ex. 114A and superimposed on Exhibits 114B through 114"O", fourteen aerial photographs of the Basin taken between 1998 and 2008.17/ The line commences at the north end of the Basin 162' from the Basin's western seawall and runs to the south with two "jogs" to the west before it ends at a projected bulkhead line in the mouth of the Basin just north of the Dania Cut- off Canal. The two jogs run perpendicular to the western seawall; the first, to the tip of the fourth finger pier allowed by the 2007 NOI and the second to a point 59.90 feet east of the western seawall in the approximate middle of the fifth and southernmost finger pier allowed by the 2007 NOI. The part of the Basin to the east of the Unobstructed Line is a navigational safe area (the "Safety Zone") created by Mr. Danti in which it is safe, in his opinion, for G&G vessels to turn and take maneuvers necessary to safely enter and exit the Basin. The Unobstructed Line and the Safety Zone were determined by Mr. Danti in a calculation that took into consideration factors including wind, current and tide, as well as the length, width, draft, maneuverability and handling characteristics of the bulk of G&G vessels and the fact that G&G vessels entering and exiting the Basin need the use of a minimum amount of space in the southern part of the Basin to initiate and complete safe entry and exit navigation maneuvers. Ultimately, the Safety Zone provides a minimum distance for a vessel 190 feet in length determined as half the beam of a vessel18/ from the bow, stern or either side of a vessel to any other vessel, dock, piling or seawall. It does not take into account factors that may require a greater distance such as wind, current and traffic under conditions that are less desirable than the best conditions experienced in the area of the Basin ("Best Conditions"). In order for vessels of the size and character that enter and exit the Basin to do so safely under Best Conditions, no finger piers, docks or moored vessels should protrude from the PBPH side of the Unobstructed Line into the Safety Zone. Under ideal wind, current, and weather conditions, the lengths of the first four finger piers from north to south as authorized by the Proposed Permit will not result in adverse effects to safety and navigation of vessels in and around the Basin. The fifth finger pier, however, is another matter. Authorized to be 152.60 feet in length as depicted in the Proposed Permit, it will protrude by more than 77 feet into the Safety Zone developed by Mr. Danti. Put another way, the fifth finger pier will adversely affect safety and navigation unless it is 75 feet or less in length given its southeasterly angle depicted in the Proposed Permit.19/ The authorized length of the fifth finger pier is not the only navigation and safety issue about which Mr. Danti testified. The length of vessels moored at the finger piers in the Proposed Permit, if too long, can present safety and navigation issues, as well, for G&G's vessels coming in and out of the Basin. With respect to the three northernmost finger piers, moored vessels should not extend past the Unobstructed Line, that is, they should not extend more than 162 feet measured perpendicularly from the Basin's western seawall. With respect to the fourth finger pier, vessels moored there should not extend past the 150.50 feet allowed for the length of the pier as depicted in the Proposed Permit. Similarly, no vessels moored at the fifth finger pier should extend past the end of a longest possible safe fifth finger pier, that is, one that is no more than 75 feet in length at the angle depicted in the 2007 NOI. The adverse affects on safety and navigation caused by the fifth finger pier at the length and as configured in the Proposed Permit would not be alleviated by G&G's use of tugboats to assist vessels entering and exiting the Basin. Tugboats are connected to the vessels they tug by tow lines at the bow and stern of the vessels. Such an arrangement adds approximately 85 feet to a typical G&G vessel of 190 feet, thereby requiring more room in the Basin for maneuvering than the vessel would need under its own power. The use of tugboats would require an even more expansive Safety Zone than was developed by Mr. Danti.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Broward County: modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or absent such a modification, deny the issuance of the Proposed Permit as applied for by PBPH. DONE and ENTERED this 14th day of October, 2010, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 14th day of October, 2010.
The Issue The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited. Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive. The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches. In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is 13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder, VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department. RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991. ARNOLD H. POLLOCK 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 14th day of August, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER LEMON BAY CONSERVANCY, INC. 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Rejected as not proven. - 10. Accepted. Accepted. & 13. Accepted. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a comment on the evidence. Not a proper Finding of Fact. Rejected. Accepted. Not a proper Finding of Fact. Accepted. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law. Accepted. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded. & 27. Accepted as comment on the evidence. Not a Finding of Fact but a Conclusion of Law. Accepted. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but argument. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence. Accepted. Accepted. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. - 46. Accepted. Rejected as not supported by the evidence or record. Not a Finding of Fact but speculation. Accepted. - 53. Accepted. 54. & 55. Accepted. Not a Finding of Fact but legal argument. & 58. Accepted. Legal Argument. & 61. Irrelevant legal argument. Rejected. Not a Finding of Fact but a Conclusion of Law. Irrelevant and exhibit not admitted. FOR THE RESPONDENT, CHARLOTTE COUNTY 1 - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. & 10. Accepted and incorporated herein, 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted. Accepted. No such proposed Finding of Fact. & 29. Accepted. Accepted. Accepted. FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. & 8. More a citation of authority that a Finding of Fact, but accepted. Accepted. & 11. Accepted and incorporated herein. 14. & 15. Accepted. 16. - 20. Accepted and incorporated herein in substance. Not a Finding of Fact but a comment on evidence and background. Accepted. & 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. - 29. Accepted. 30. & 31. Accepted but not controlling. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 35 Tallahassee, Florida 32399 Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A. P.O. Drawer 9480 Bradenton, Florida 34206 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000 Ken Plante General Counsel DNR 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000
Findings Of Fact The Problem: A Seawall In Danger of Collapse Applicant is an incorporated condominium association which owns the Gulf front property of Bonita Beach Club, a residential condominium located on the northern portion of a barrier island known as Little Hickory Island. The island is south of Fort Myers and part of Lee County. (Testimony of Truitt, Tackney; R-1.) Applicant's Gulf front property is protected by a 600-foot seawall; that seawall, exposed to wave and storm attack, is now in the beginning stages of failure. Applicant seeks a permit to place a revetment along the entire seaward face of the seawall "to help strengthen the seawall and stop the erosion at [its] . . . base . . . ." (R-1.) (Testimony of Truitt, Tackney, Sharma; R-1) The seawall shows evidence of profile lowering; sand has been scoured from its face, exposing 6 to 7 feet of wall above the sand line. Its face shows abrasions from buffeting by sand and sediment; its joints have begun to separate, allowing sand from behind the wall to leak through the cracks. Under high tide conditions, the seaward portions of the seawall are under water; under other tidal conditions there is no more than 6 to 7 feet of wetsand area between the base of the wall and the waterline. (Testimony of Truitt.) The present condition of the seawall is mainly due to two processes: the long-term shoreline migration of Little Hickory Island, and (2) profile steepening, scouring, and accelerated sand loss in the immediate vicinity of Applicant's seawall. There is a south-to-north longshore or littoral sand transport in the area off Little Hickory Island, a northward flowing "river of sand." This phenomenon has caused sand loss to beaches in front of and south of Applicant's property and sand accretion to the undeveloped northern beaches north of the island. The localized profile steepening and accelerating sand loss at Applicant's seawall is caused by waves hitting the vertical seawall, then rebounding-- causing removal of sand at the foot of the wall and steepening of the offshore profile. This localized sand loss and erosion has been aggravated by the original placement and alignment of Applicant's seawall. 7/ The seawall protrudes further seaward than adjacent seawalls or bulkheads. 8/ This protrusion, together with the wall's irregular shape, disrupts the otherwise straight shoreline and acts as a headland: an abutment which concentrates wave energy and longshore currents and causes accelerated erosion and sand loss in the immediate area. The effects of the northerly longshore drift and the localized sand loss have been dramatic: between 1974 and 1980 the sandy beach in front of Applicant's seawall has receded landward 50-60 feet. (Testimony of Truitt, Tackney, Sharma; P-1, P-2, P-3, P-4, 1-2, R-3, R-4, R-5, R-6, R-7.) In addition, the shoreline of Little Hickory Island is gradually and inexorably eroding. This is due to long-term backyard erosion, a natural )process by which barrier islands gradually migrate landward. (Testimony of Sharma, Tackney, Truitt.) II. Applicant's Solution: Place a Rock Revetment in Front of the Seawall In October, 1980, Applicant applied for a DNR permit to place a rock revetment along the existing seawall. By January, 1981, DNR's Bureau of Beaches and Shores determined that all of the documentation required by its rules 9/ had been submitted and the application was complete. Subsequently, the Applicant agreed to several design changes suggested by DNR and agreed to a permit condition requiring it to dedicate a travel easement to assure continued public access to beaches north of its property. As so modified, DNR proposes to issue the requested permit. (Testimony of Truitt; R-1, -R-11, R-12.) The proposed permit, with conditions, is contained in Respondent's Exhibits R-1, R-11, and R-12. 10/ The proposed shore protection structure is described as a rock toe-scour revetment to be placed along the seaward face of Applicant's existing seawall. The revetment extends 7 feet in the shore-normal direction and approximately 600 linear feet in the shore-parallel direction. It will consist of lime-rock boulders of various sizes stacked on top of each other. The top layer of rocks will be the largest, 75 percent of them weighing greater than 500 pounds. The rock revetment will rest on a layer of Filter-X mat to help stabilize the underlying sand. The revetment's elevation will range from 0.0 feet (NGVD) 11/ at the toe of the seawall to -0.5 feet (NGVD) at 7 feet seaward. Its slope will be no greater than 3 horizontal units to 1 vertical unit. The mean high waterline will intercept the revetment-seawall interface at a maximum elevation of approximately +1.5 feet (NGVD). (R-1, R-11, R-12.) III. The Effects of the Proposed Revetment The proposed revetment will fulfill its primary purpose: it will protect the Applicant's seawall by reducing the amount of sand that is scoured and removed from its face and it will add significant structural stability to the wall. It will provide these benefits because its sloping surface will intercept and dissipate waves which would otherwise hit and rebound off the vertical seawall. Because wave deflection energy will be lessened, steepening of the offshore profile will be reduced and accelerating longshore currents will be slowed. It will also protect the seawall against storm, but not hurricane, damage. (Testimony of Truitt, Tackney.) However, the proposed rock revetment will not stop the migration of sands from the southern to the northern reaches of Little Hickory Island; the northward flowing longshore currents will continue. Neither will the revetment protect Applicant's property against long-term background erosion; the entire island will continue its steady easterly retreat to the mainland. Scouring at the ends of the existing seawall will be reduced, but not eliminated. Eddy currents at the ends of the revetment will cause some localized scouring to take place. Wave and water action will take its toll on the revetment; it will require periodic repair and rebuilding in the years ahead. (Testimony of Sharma, Tackney, Truitt.) Although the testimony is conflicting, the weight of the evidence is that the proposed revetment will not adversely affect adjacent beaches and the offshore profile. 12/ While localized scouring will not be eliminated, the evidence indicates that the rates will be lessened--that the existing erosion problems will be mitigated, not aggravated. With reduced localized scouring, longshore currents will not accelerate, and the offshore profile will not deepen at increasing rates. The expert witnesses agreed that, at least for the short term, the proposed revetment will protect the existing seawall against at least three-year storm conditions. (Testimony of Tackney, Truitt, Sharma.) While the revetment will not accelerate or contribute to the erosion of adjacent lands, it will impair the public's use of the beaches in front of and to the north of the Applicant's seawall. Because the revetment will protrude 6 to 7 feet seaward from the seawall--intercepting the mean high waterline--the public will be precluded from traversing the beaches in front of Applicant's property. That narrow corridor of wet-sand beach now permits dry passage only during low tide. With placement of the rock revetment on that passageway, it will become impassable to most people who use the Little Hickory Island beaches. 13/ (Testimony of Sharma, Member of the Public.) Generally, rip-rap revetments, such as that proposed by Applicant, do not eliminate erosion or cause sand to accrete. Rather, they tend to increase erosion and escarping beyond that which would occur if a shoreline is left in its natural, unaltered condition. (Testimony of Sharma, Truitt, Tackney.) IV. DNR Coastal Construction Permits: Practice and Policy There may be alternatives to the proposed revetment which will not endanger the Applicant's upland structure or block the public's access to beaches in front of and north of Applicant's property. 14/ DNR does not require the consideration of shore protection alternatives when it processes coastal construction permit applications. Neither, in its view, is public access to adjacent beaches a matter of regulatory concern in this licensing process. 15/ At the staff level of DNR, the sole consideration is engineering design of the proposed structure: At the level of staff of the Bureau of Beaches and Shores there are no other con- siderations other than simply engineering judgments on the appropriateness or other considerations of the design. I have no idea what the governor and cabinet or exec- utive director may consider. (Tr. 170.) This view of the agency's duty helps explain why DNR has never denied an application to construct a shore protection revetment, although it has suggested design modifications, as was done in this case. (Testimony of Truitt.) V. Interests of Objectors to Proposed Revetment Project DNR requires applicants for coastal construction permits to provide a map showing the location of the proposed erosion control structure and the shoreline for at least 1,000 feet on each side. Applicants are also required to provide a list of the names and addresses from the latest county tax role of all riparian property owners within 1,000 feet. It is DNR practice, in accordance with its rule, Section 165-24.07, Florida Administrative Code, to mail notice of a proposed project to those riparian property owners. By rule, such interested persons or objectors to a proposed project have the right to appear and make their positions known to the Governor and Cabinet at the time the agency decision is made. Id. (Testimony of Truitt; R-1.) Petitioners, Casa Bonita I and II Condominium Associations, Inc., and Seascape Condominium I and II Associations, Inc., assert that the proposed revetment will adversely affect their rights as riparian owners, that it will cause erosion of their shorelines; they also allege that it will prejudice their recreational use of sovereignty lands--the public's beaches lying below the line of mean high water. Relative to the site of the proposed revetment, Casa Bonita I Condominium Association, Inc., lies 1,350 to 1,400 feet south; Casa Bonita II Condominium Association, Inc., 670 feet south; Seascape Condominium I and II Associations, Inc., lie immediately adjacent to the site. (Testimony of Tackney; R-1, R-14.) No evidence was presented to establish that intervenor Lee County is a riparian property owner within 1,000 feet of the proposed revetment. The Lee County Board of County Commissioners were, however, notified of the instant application and given an opportunity to object. The parties have submitted proposed findings of fact; to the extent such findings are incorporated in this Recommended order, they are adopted; otherwise they are rejected as irrelevant to the issues presented or unsupported by the preponderance of evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Bonita Beach Club Condominium Association, Inc., for a coastal construction permit be GRANTED, subject to the agreed-upon conditions described above, including the dedication of a travel easement allowing the public to circumvent the 600-foot rock revetment. 21/ DONE AND RECOMMENDED this 16th day of October, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1981.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Laven owns a parcel of land at 1500 Bay View Drive, Sarasota, Florida on which he has a home. The property is approximately 180 feet by 100 feet, and is located on Sarasota Bay. A seawall has been constructed along the shoreline. Respondent Cloud owns a parcel of land at 2610 Cardinal Lane, Sarasota, Florida that is contiguous to Respondent Laven's property at 1500 Bay View Drive, Sarasota, Florida that is also located on Sarasota Bay. Approximately 100 feet of the property is located along the shoreline of Sarasota Bay. Sarasota Bay is currently designated as a Class III outstanding Florida waterbody. On or about June 28, 1991 Respondents Laven/Cloud filed an application to modify existing permit number 581885033 which had been previously issued to Respondent Laven for construction of a private dock consisting of an access pier 210 feet by 5 feet, with a terminal platform 20 feet by 4 feet on Laven's property located at 1500 Bay View Drive, Sarasota, Florida. Previous to the modified application being filed by Laven and Cloud, Laven had attempted to modify permit no. 581885033 by reducing the access pier from 210 feet by 5 feet to 175 feet by 5 feet. The Department concluded that the dock, as modified, would not reach water of sufficient depth to prevent damage to the seagrass, and considered this a major modification requiring a new application. Therefore, the Department denied the modified application, and Respondent Laven did not file a new application. The application filed by Laven/Cloud on or about June 28, 1991 to modify existing permit 581885033 proposed to construct a private dock on the property line between Laven's and Cloud's property. The private dock was proposed to consist of an access pier 4 feet by 210 feet, with two terminal platforms, each 25 feet by 6 feet. After review of the application to modify permit 58188503 the Department issued a Notice of Intent to issue a permit for the proposed construction of the private dock on August 2, 1991. The Notice of Intent included 18 specific conditions to which the proposed dock would be subject. Those relevant to this proceeding are as follows: 1) . . . . If historical or archaeological artifacts, such as Indian canoes, are discovered at any time within the project site the permittee shall immediately notify the district office and the Bureau of Historic Preservation, Division of Archives, History and Records Management, R.A. Gray Building, Tallahassee, Florida 32301. Turbidity screens shall be utilized, secured, and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Double turbidity screens, staked hay bales, staged construction and other additional measures shall be used as necessary to insure compliance with water quality standards in Chapter 17-3, Florida Administrative Code. During construction, all areas of exposed soils shall be effectively isolated from waters of the state to prevent erosion or deposition. All exposed soils shall be stabilized with an appropriate ground cover within 72 hours of attaining final grade. 5) . . . . 6) . . . . The applicant is not permitted to conduct or construct the following activities or facilities in conjunction with this dock structure: Fish cleaning facilities. Fuel hoses or fueling facilities. The mooring of boats or vessels for live aboards. The mooring of boats utilized for com- mercial purposes such as fishing, scuba diving, boat rental, etc. Picnic tables or benches. Storage sheds or enclosed structures. Covered boat slips. Sanitary facilities. The rental of boat slips or mooring space. Turbidity screens shall effectively encom- pass each piling during installation and remain in place until any generated turbidity has subsided. Turbidity screens shall effectively encompass an area around each piling not to exceed 7 square feet. Any watercraft which may be utilized during construction activities shall only operate/moor in waters of sufficient depth so as not to cause bottom scour or prop dredging. The access pier shall be elevated a minimum of 5 feet above mean high water for the most waterward 150 linear feet of the access pier. The most waterward 150 linear feet of the access pier shall be constructed with the slated[sic] design indicated on sheet 4 of permit submittals. The most landward 60 feet of the access pier shall be constructed utilizing the 2 x 6 decking. The permittees shall construct 100 linear feet of rip rap along the existing vertical seawall as indicated on sheet 1 of permit submittals. Rip rap material shall consist of natural boulders or clean concrete rubble six inches to three feet in diameter or in average dimensions. The slope of the rip rap shall be no steeper than 2H:1V. There shall be no reinforcing rods or other similar protrusions in concrete rubble and all rubble or boulders shall be free of attached sediments. The rip rap shall be install concurrently with the construction of the permitted dock. The permittees shall grant the Department a conservation easement over the shorelines of the two subject parcels. A conservation easement shall be established over the seawall cap and 2 feet waterward of the seawall for the entire length of the seawall to 1500 Bay View Drive (Lots 1, 2, 3, 4, 11, 12, 13, and 14 Block Q, Bay View Heights Addition). A conservation easement shall also be established between the limits of the mean high water linear and the landward extent of waters of the State (Pursuant to Section 170301.400[sic] FAC) for the entire length of the shoreline at 2610 Cardinal Place (Lots 5, 6, 7, 8, 15, 16, 17 and 18, Block Q, Bay View Heights Addition). 14) . . . . 15) . . . . The following seagrass monitoring program shall be implemented and adhered to: Within 45 days of the issuance of this permit (and prior to initiation of dock con- struction) the permittee shall establish a preconstruction monitoring program consisting of one meter square grids within the area specified on sheet 1 A of permit attachments. A minimum of 10 random one meter square plots shall be selected within each area A and B and also along the centerline established along the length of the dock. The permittee shall measure percent areal coverage of seagrasses within each plot within the grid system. Each of the plots shall be monitored as specified in above a minimum of two times per year (July and January) over a three year monitoring period subsequent to dock construction. Reports shall include date, water depth, water clarity, species of seagrasses observed, percent areal coverage and representative height of seagrasses within each plot. Moni- toring reports shall be submitted to the Department within 30 days of the monitoring event. The first monitoring event shall occur during the first January or July (which ever occurs first) subsequent to completion of dock construction. Hand railing shall be constructed along the entire length of the access pier (on both sides). The temporary or permanent mooring of watercraft shall only occur at the terminal platform. 18) . . . . By imposing special conditions 3, 4, 8 and 9 it will ensure that the dock construction will have a temporary minimal impact on the water quality, and there will be no permanent water quality impacts as a result of this project. If this permit is not issued, it would be possible for each of the applicants to build an exempt dock on his property which would require two accesses or swaths through the seagrass beds. An exempt dock (500 square feet or less) may result in the dock terminating in seagrass beds and in water of insufficient depth to prevent damage to the seagrass beds or to prevent bottom scour or propeller dredging. The project site consists of a shoreline with a shoal area where Shoal grass (Halodule wrightii) and Turtle grass (Thalassia sp.) are growing, with the Turtle grass being the predominant species to a point further waterward to where there is a significant change in the water depth. Such point being approximately at the termination of the proposed dock. Beyond this point the seagrass beds are scattered. Therefore, any dock shorter than approximately 210 feet would terminate in the main seagrass beds and result in the seagrass beds being routinely disrupted or damaged by power boats. The proposed design of the most waterward 150 linear feet of the deck portion of the proposed dock has less solid surface than a normal deck, and, along with the proposed height of the most waterward 150 linear feet of the proposed dock, would allow substantially more light to penetrate the area and provide sufficient light for healthy existence of the seagrasses. The proposed impacts consists of disturbance of the seagrass beds. Requiring railing along the entire access pier on both sides will preclude mooring of motor craft in the area of the seagrass and in water depths insufficient to prevent damage to the seagrass, and to prevent bottom souring and propeller dredging. Because of the length, height and design of the dock there would be minimal impact, if any, on the seagrass beds. The design of the dock will ensure that the project will not adversely affect the functions being performed in the area intended for the dock. The conservation easement will ensure that a feeding ground for wading birds will be maintained, and along with the dock design will minimize any impacts that the proposed dock will have on the fish and wild life habitats. The construction of the 100 linear feet of rip rap along the existing vertical seawall on Sarasota Bay along Laven's property will reduce scouring and erosion at the base of the seawall, and provide beneficial habitat which will be an improvement of the seawall alone. There may be minimal impacts on recreation in that it may impose some inconvenience for those fishing and those attempting to access the bay for sailing. There may be some minimal impact on navigation in that the proposed dock will entend out approximately 35 feet further than any other existing dock in the area but due to the shallow water in this area boats presently have to travel at a reduced rate of speed, and for this reason the proposed dock would not adversely affect navigation. However, this should be mitigated by requiring lights on the dock as a safety feature. The project will not adversely affect the fishing, or recreational values, or marine productivity in the vicinity of the project. The proposed project will not adversely affect the public health, safety, or welfare or property of others. The proposed dock will be a permanent structure, notwithstanding that regular mainentaince will be required. The Respondents Laven/Cloud have provided reasonable assurances that the proposed project will be clearly in the public interest, notwithstanding the minimal impact it may have on recreation and navigation. Particularly, when all Special Conditions are considered, specifically Special Conditions 12 and 13 pertaining to rip rap along the vertical seawall on Laven's propertry and the granting of the Conservation Easement over both Laven's and Cloud's shoreline.
Recommendation Accordingly, in view of the above Findings of Fact and Conclusions of Law, it is, therefore, recommended that the Department enter a Final Order issuing Permit Number 581885033 to Respondents Robert Laven and John Cloud as set forth in the Department's Intent To Issue dated August 2, 1991 provided that the grant of the subject permit should include the general and specific conditions in the Intent To Issue as well as the condition requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above. RECOMMENDED this 21st day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3988 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 the case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Both paragraphs regarding Respondent Cloud's testimony at the hearing go to his credibility as a witness and are not stated as a finding of fact and are therefore rejected. Paragraphs 1 and 2 regarding Rose Poynor's testimony appear to be supported by documents or testimony not received at the hearing and are therefore rejected. Paragraph 3 regarding Rose Poynor's testimony is either immaterial or irrelevant or goes to her credibility as a witness or is supported by facts not in the record. The paragraph regarding Roy R. Lewis' testimony goes to his credibility as a witness and is not a statement of fact. Paragraphs 1 and 2 regarding Robert Patten's testimony is more of a restatement of his testimony than a finding of fact. But in any event, are neither material or relevant. The next to the last paragraph is not supported by the record but see Finding of Fact 20. The last unnumbered paragraph is not supported by the record. See Finding of Fact 24. Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (1, 2, 3); 2 (4, 6); 3 (5); 4 (11); 5 (11); 6 (13); 7 (7, 8); 8 (7, 8); 9 (7, 8); 10 (7, 8); 11 (7); 12 (7); 13 (12, 15); 14 (7); 15 (12); 16 (7, 14); 17 (15); 18 (7, 16); 19 (17); 20 (7); 21 (7); 22 (7, 18); 23 (18); 24 (20); 25 (7, 17); 26 (23); 27 (19); 28 (21); 29 (22); 30 (7); 31 (17); 32 (7); 33 (9); 34 (9, 10); 35 (7, 8, 11, 12, 14-22); and 36 (7). Rulings on Proposed Findings of Fact Submitted by Respondents Laven and Cloud Respondents Laven and Cloud have divided their findings into two groups (1) Findings of Fact and (2) Ultimate Findings. Since the Findings of Fact are duplicative of the Ultimate Facts or are only restatements of the witnesses testimony, I will respond only to the Ultimate Facts. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (1); 2 (3); 3 (2); 4 (4, 6); 5 (3); 6 (7, 12); 7 (7, 17, 18); 8 (7); 9 (7); 10 (7, 24); 11 (7, 24); 12 (22); 13 (17); 14 (is a duplication of paragraph 13); 15 (20); 16 (21) and 17 (16). COPIES FURNISHED: Alan S. Dorrill 1726 Floyd Street Sarasota, FL 34239 F. Craig Richardson, Esquire Icard, Merrill, Cullen, Timm, Furen, & Ginsbrug, P.A. 2033 Main Street, Suite 600 Sarasota, FL 34237 Carol Forthman, Esquire Maureen A. Eggert, Certified Legal Intern 2600 Blairstone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 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
The Issue Does a statement by an agency that its regulatory authority is limited by Section 161.58, Florida Statute, constitute a non- rule policy? Does a statement by an agency that fees levied under authority of Section 161.58, Florida Statutes, by county governments for beach driving do not constitute revenue for purposes of invoking its regulatory jurisdiction pursuant to Florida Administrative Code Rule 18-21.005 (Rule 18-21.005) constitute a non-rule policy?
Findings Of Fact Petitioners Petitioner Shirley Reynolds (Reynolds) resides and owns beachfront property overlooking the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Reynolds does not own to the mean high water line, and her property is not adjacent to the sovereign submerged lands held by the Trustees. Reynolds “shares riparian rights with the public.” Reynolds has owned her oceanfront home since 1981. She has observed beach driving by the general public on the beach and in the shallow water in the vicinity of her home. She enjoys the beachfront for “regular recreational, traditional recreational purposes.” Petitioner Diann Bowman (Bowman) resides and owns property that extends to and adjoins the mean high water line of the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Bowman has observed the general public driving on the beach and in shallow waters of the Atlantic Ocean in the vicinity of her property. Bowman goes swimming in the ocean, builds sand castles by the edge of the water with her grandchildren, and walks on the beach with friends. Petitioners did not have any requests for leases or applications for action pending before the BOT, and Volusia County had not made an application to the Trustees for any activity permit or lease. Petitioner Bowman was not even aware of Reecy's e- mail, and could not articulate how she was affected by it. Although Reynolds testified at length about the impacts of beach driving and beach concessions between her home and the ocean, she failed to show how she was affected by Reecy's statements that the BOT does not regulate beach driving. In response to counsel’s question of what personal interest she has in whether or not the Trustees require authorization to use state land for motor vehicle traffic in front of her home, she responded, “[I]f and when they ever deal with it, it will certainly raise the consciousness of the human safety element.” Petitioners testified regarding the adverse impacts of beach driving on their property and their enjoyment of their property. Beach driving has an adverse impact upon the property values and upon their enjoyment of their property. Respondents The BOT is an agency of the State of Florida, consisting of the Governor and Cabinet. (Art. IV, s. 4 (f), Fla. Const.) The BOT holds the title to the State’s sovereign submerged lands acquired at statehood “for the use and benefit of the people of the state,” pursuant to Chapter 253, Florida Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private use of such lands generally requires consent of the BOT and must not be contrary to the public interest. The BOT is required to manage and conserve state-owned lands, including sovereignty lands, by law and is granted rulemaking authority to that end. The Department functions as the staff for the BOT, and issues leases and other authorizations for private parties to use sovereign submerged lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. In carrying out its duties with relationship to the BOT, the Department implements policy as determined by the BOT, to include taking some final agency actions. The Department would be the agency through which the BOT would initiate rulemaking. The Department does not have delegated authority to adopt rules for the BOT. Ken Reecy (Reecy) is a Senior Management Analyst Supervisor in the Department’s Division of State Lands. One of Reecy’s job duties is to provide responses to requests for BOT’s public records housed in the Division of State Lands of the Department. On August 5, 2003, Ross Burnaman e-mailed Eva Armstrong of the Department the following public records request: Hi Eva-I am hoping that you can assist me with this inquiry for public records. I'm looking for any Trustees authorization for the use of state lands (including uplands and submerged lands) for beach driving by the general public or commercial vendors. While I'm aware of Section 161.58, Florida Statutes, I'm of the opinion that Trustees' authorization is still required for beach driving on state lands. Most local governments that allow beach driving (e.g. Gulf County, Volusia County) charge a fee for that activity. That would appear to trigger, Rule 18-21.005(b)(2), FAC, and the requirement for a lease. As I understand it, public beach driving is allowed in parts of the following counties: Nassau, Duval, Flagler, St. Johns, Volusia, Gulf and Walton counties. Thanks in advance for you assistance. Best regards, Ross Burnaman (phone number deleted) Ms. Armstrong passed this request to Ken Reecy of the Department who replied to Mr. Burnaman with the following e-mail message: Mr. Burnaman Concerning your request as to any authorization by the Board of Trustees for beach driving and fees triggering Rule 18- 21.005(b)(2)[sic]: We are unaware of any instance in which the issue of beach driving has been brought before the Board of Trustees for authorization. Further, in discussions with staff from our legal department, it is felt that s. 161.58 sufficiently covers the issue and that authorization from the Board is not necessary. We are also of the opinion that fees counties charge for beach driving would not trigger Rule 18-21.005(b)(2)[sic]. If you have any further questions on this issue, please contact Suzanne Brantley in EIP's Office of General Counsel (phone number deleted) The e-mail above contains two potential policy statements; one concerning a statute and the other concerning a rule. The analysis of each differs slightly. The BOT was authorized at one time to regulate all the uses of state sovereignty lands, to include regulation of driving on the state's beaches, i.e., that portion of land seaward of the mean high water line (hereafter: beach.) The BOT restricted the operation of private vehicles on the beaches via rule. The Legislature of the State of Florida enacted Section 161.58, Florida Statutes, which authorized those counties which had traditionally permitted driving on the beach to regulate the operation of privately owned vehicles on the beaches in their counties. Several of the counties which had traditionally permitted driving on the beach permitted privately owned vehicles to be operated on the beach in their counties and charged a small fee to defray the costs of providing parking, life guards, and traffic direction on the beaches. The BOT attempted to intervene in those counties which charged fees for beach driving on the basis that the fees being charged were "revenue" producing. The Legislature of the State of Florida amended Section 161.58, Florida Statutes, to specifically authorize the counties to collect reasonable fees to defray their costs of regulating beach driving. The statements that are challenged have not been adopted as a rule. Reecy testified at the hearing. Reecy only intended to give Burnaman information related to his public records request. The portion of Reecy's e-mail that is being challenged was intended to explain why no records were found. Reecy responded because Burnaman had sent follow-up e-mails to Reecy’s supervisor, Armstrong, the Director of the Division of State Lands. Reecy knew that Armstrong had a practice of providing information to the public when it was requested. Reecy is not charged with implementing or interpreting Florida Administrative Code Rule 18-21 and does not process applications for leases or other authorizations from the BOT. Reecy's statement that no records were found is not a policy statement and has not been alleged to be one by Petitioners. Reecy conferred with Department legal staff before issuing his statement about Section 161.58, Florida Statutes. Reecy did not state that Section 161.58 exempted counties from getting BOT authorization for beach driving, as Petitioners state in their Petition, for several reasons: first, Reecy is not the person on the BOT’s staff who makes such determinations; second, there was no factual determination pending, i.e., no request for declaratory statement or request for an exemption or authorization; and third, the statute cited and its history indicate that the Legislature has vested the exclusive authority to regulate beach driving in those counties in which it traditionally occurred to county government in those counties. James W. Stoutamire (Stoutamire) is the principal Department employee who is charged with interpreting and applying the BOT’s rules. Stoutamire was the person to whom authority had been delegated to make such policy determinations. Burnaman's request was not presented to Stoutamire, and Reecy did not consult with Stoutamire. Although it is a statement concerning general law, Reecy's first statement regarding Section 161.58, Florida Statutes, does not assert agency jurisdiction or exempt a specific factual predicate from agency jurisdiction. Reecy also discussed Burnaman’s reference to Florida Administrative Code Rule 18-21.005(1)(b)2. with the Department's legal staff. Reecy's references to the section mistakenly cites it as Rule 18-21.005(b)2. Regardless of Reecy's intent, his answer constitutes an interpretation of the rule as applied to the fees charged by counties for beach driving. The BOT's rules provide what types of private activities must have consent prior to their being undertaken on sovereign submerged lands. They do not contain a list of all of the many public activities that occur on Florida’s beaches, shores, and waters that do not require consent. The BOT's rules in Chapter 18-21 are not intended to prevent air or noise pollution, promote public safety, protect property values, provide peace and quiet, or protect quality of life. These are the concerns about which Petitioners testified as diminishing their peaceful enjoyment of their property rights. Beach concessions above the mean high water line do not fall within the Trustees jurisdiction or control.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material hereto, Respondent was a certified pool contractor, holding license no. CP-C033753, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. At all times material hereto, Respondent's certified pool contractor's license qualified Artistic Pools and Spas, Inc. with the Florida Construction Industry Licensing Board. On or about May 19, 1986, Respondent, d/b/a Artistic Pools and Spas, Inc. entered into a contract with Joseph and Joyce Malinoski for the construction of a swimming pool at 31 Sea Harbour Drive, Ormond Beach, Florida for a contract price of $9,737.75. The contract required a down payment of ten per cent (10 percent) of the contract amount ($973.78) which was paid by the Malinoskis on May 19, 1986. The Malinoskis resided in Massachusetts at the time they contracted for the swimming pool with Respondent and had contracted for the construction of a home in Ormond Beach, Florida to begin upon the pool shell being in place. The Malinsokis returned to Massachusetts upon execution of the contract expecting Respondent to commence work on the pool two weeks after he was notified by the builder that the survey was completed and the benchmark in place. On or before June 18, 1986, Respondent contacted the Malinoskis by phone to advise them that the pool was under construction, that Respondent was ready to start pouring concrete, and that he needed the next two (2) installments (20 percent due on day of excavation and 35 percent due on day of concrete shell installation) in the amount of $5,355.76. On or about June 18, 1986, the Malinoskis forwarded a cashier's check in the amount of $5,355.76 made payable to Respondent with the understanding from Respondent that the pool was under construction. On or about June 25, 1986, the Malinoskis were advised by their building contractor that the pool was not under construction. On or about July 5, 1986, the Malinoskis returned to Ormond Beach and found that the pool was not under construction. Although the business phone at Artistic Pools and Spas, Inc. had been disconnected, the Malinoskis ultimately located the Respondent but were unable to resolve the problem until after a complaint had been filed. In early August, 1986, an agreement was reached with the Malinoskis, Respondent and David Larsen whereby Respondent would furnish the labor to build the pool, Larsen would pay the bills and the Malinoskis would pay the balance owed on the contract to Larsen and at end of construction Larsen would give the Malinoskis release of liens. The pool was constructed without the Malinoskis having to pay any additional money on the contract. The money used by Larsen to purchase materials above the amount paid to Larsen by the Malinoskis was repaid to Larsen by Respondent. Respondent supplied all the labor to construct the pool. The testimony of Respondent, which I find credible, was that the funds received by Respondent were frozen due to an Internal Revenue Service levy on the Respondent's business account which resulted in the IRS taking all the funds in the bank account, including the money from the Malinoskis. There was insufficient evidence to show that Respondent diverted the Malinoskis' funds or that the Respondent was unable to fulfill the terms of the contract. On or about November 15, 1985 Respondent, d/b/a Artistic Pools and Spas, Inc. contracted with John and Louise McGowan for the construction of a swimming pool and spa at 1266 Robbin Drive, Port Orange, Florida for an original contract price of $11,500. These were 2 addendums to the original contract bringing the total contract price to $13,005.75. The contract provided for the spa to be 7 feet long by 5 feet wide with a depth ranging from 18 inches to 36 inches. As constructed, the spa was 5 feet long by 5 feet wide with a depth of 44 inches. The spa was also unlevel resulting in water spilling on to the deck rather than into the spillway to the pool. The therapy jets were located too deep in the spa to allow them to function properly. The spa has never been operational. Respondent was aware of the deficiencies in the construction of the spa but failed to correct them. The deck around the pool was not properly finished in that it is uneven and rough in several locations and is pitched toward the pool rather than away from the pool. The deck also has several facial cracks (not structural) which indicate a nonuniform thickness. As contracted, the pool was to have 3 return fittings of which only 2 were installed. The contract called for the installation of a heater by the Respondent. Although the heater was installed, it was improperly placed resulting in the inspector putting a "red tag" on the heater and having the gas company disconnect it. The McGowans have paid all but $575 of the contract price but refuse to pay the balance until corrections are completed. Respondent was aware of the deficiencies in the construction of the pool but failed to correct them. The evidence is clear that Respondent failed to properly supervise the construction of the McGowans' pool and spa, thereby resulting in poor workmanship in the construction of the pool and spa.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Florida Construction Industry Licensing Board (Board) enter a final order finding Respondent guilty of violating Section 489.129(1)(j) and (m), Florida Statutes and for such violation it is Recommended that the Board assess the respondent with an administrative fine of $500.00 and suspend the Respondent's pool contracting license for a period of two (2) years, stay the suspension, and place Respondent on probation for a period of two (2) years, provided the Respondent pays the administrative fine of $500.00 within sixty days of the date of the Final Order. It is further Recommended that the charges of violating Section 489.129(1)(h) and (k), Florida Statutes be DISMISSED. Respectfully submitted and entered this 17th day of September, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1987.
