The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Petitioner's property is zoned CTF-28 which contemplates high density residential, motels and marinas. Riprap at existing seawall along Petitioner's property extends four to six feet from the seawall, which makes it hazardous for boats to moor to the seawall. By constructing a dock 122 feet long extending nine feet into the water Petitioner is, in effect, extending the beneficial use of its property nine feet into and over navigable waters. Marina facilities are permitted in CTF-28 zoning as a special exception (Section 131.099, Clearwater Building and Zoning Regulations). Other commercial properties in the vicinity have been granted special exceptions to construct the same type dock. The proposed dock will be the same level as the finger piers extending therefrom to eliminate any step that could create a safety hazard. No evidence was presented that the proposed project would be injurious to the neighborhood or otherwise detrimental to the public welfare other than the conclusion by the board that granting the special exception would allow this riparian owner to use public property, thereby creating a precedent which would be followed by others.
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
Findings Of Fact Petitioner is a private yacht club located on Lots 5-11 inclusive, Block D, Bayside No. 6, Unit A, 830 South Bayway Boulevard, Clearwater, Florida. Founded some five years ago, the club provides a wide array of boating and social functions for its membership. It sits on the north side of Bayway Boulevard and is approximately 50 feet east of Clearwater Pass Avenue. The property is rectangular shaped and has dimensions of approximately 420 feet by 120 feet. The widest portion of the property fronts Clearwater Harbor to the north and Bayway Boulevard on the south. The yacht club is situated within an area currently zoned by the City as CTF-28 (high density commercial-tourist). This District provides for a complete range of motel-hotel developments with a major emphasis on tourism. The primary permitted uses and structures within the CTF-28 District are combination hotel, motel, apartment and business buildings, apartment houses, townhouse developments and restaurants. A number of special exceptions to the permitted uses are authorized within a CTF-28 District. These include, inter alia, three types of marina facilities, namely, Type A (pleasure craft docking), Type B (launching ramp site, commercial) and Type C (private marina). The City has never classified Petitioner under any of these categories. Upon obtaining a Type C classification, a property owner may engage in 12 separate uses of the property as a matter of right, and a thirteenth upon obtaining specific Board approval. These include: (a) sales and service facilities, (b) boat slips (excluding covered boat slips or dry storage unless specific Board approval is obtained), (c) boat handling equipment, (d) boat and gear storage, (e) launching facilities, (f) fuel station, (g) lockers and sanitary facilities, (h) restaurant facilities (not advertised), (i) club house, (j) motel or boatel, (k) recreational facilities (not commercial), (l) park or picnic area, and (m) automobile parking. Petitioner now engages in all permitted activities except items (a), and (j). It does not wish to engage in the latter three uses even if the application is granted. All activities presently conducted are done so in a manner consistent with the requirements of the Zoning Ordinance. On the east side of Petitioner's property is a multi-story restaurant and lounge while to the west lies a 4-story condominium complex (Bayside 17). Directly across Bayway Boulevard and to the south are two high-rise condominium complexes, one of which is still under construction. Boat docking facilities are located on the waterfront throughout the area, including that of Petitioner and adjacent property owners. The area may be generally described as a combination of high density residential and commercial buildings and structures catering to the tourist or part-time resident. The proposed reclassification is compatible with the surrounding properties and the character of the land. Its uses fit within the general scheme of zoning for a CTF-28 District, and are consistent with the Land Use Plan. The chief concern of the adjacent property owners who testified is a fear that reclassification of the property will diminish the view of the water now enjoyed across the clear space on the west side of Petitioner's property. However, since no change in the use of the property will be made by virtue of reclassification, the existing view should not be impaired.
The Issue The issue to be determined in these consolidated cases is whether the U.S. Army Corps of Engineers (“Corps”) and the City of Sarasota (“City”) (sometimes referred to as “the Applicants”) are entitled to the proposed joint coastal permit, public easement, and sovereign submerged lands use authorization (referred to collectively as “the Permit”) from the Department of Environmental Protection (“DEP”) and the Trustees of the Internal Improvement Trust Fund to dredge sand from Big Sarasota Pass and its ebb shoal and place the sand on the shoreline of Lido Key.
Findings Of Fact The Parties Petitioner Siesta Key Association, Inc. is a Florida Not for Profit Corporation, with its principal place of business in Sarasota. The organization has approximately 1,425 members and represents the interests of those who use and enjoy Siesta Key’s beach and waters. A substantial number of its members have substantial interests in the use of the beach and adjacent waters. Petitioner Michael S. Holderness is a resident and property owner on Siesta Key. Mr. Holderness has substantial interests in the protection of his property and the use of the beach at Siesta Key and adjacent waters. Petitioner Save Our Siesta Sands 2, Inc. is a Florida Not For Profit Corporation, with its principal place of business in Sarasota. The organization has over 700 members and was formed in opposition to the current dredging proposal. A substantial number of its members have substantial interests in the use of the beach at Siesta Key and adjacent waters. Petitioners Peter van Roekens and Diane Erne are residents and property owners on Siesta Key. They have substantial interests in the protection of their properties and the use of the beach at Siesta Key and adjacent waters. Respondent City of Sarasota is an incorporated municipality in Sarasota County. It is a co-applicant for the Permit. Respondent Corps is the federal agency responsible for the Lido Key Hurricane and Storm Damage Reduction Project first authorized by Congress in 1970. Under this Project, the Corps has conducted periodic maintenance, inlet dredging, surveys, and bypassing to protect Lido Key’s shoreline. The Corps is a co-applicant for the Permit. Respondent DEP is the Florida agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 161, 373, and 403, Florida Statutes, and rules promulgated thereunder in Titles 62 and 62B of the Florida Administrative Code, which pertain to the permitting of construction activities in the coastal zone and in surface waters of the state. DEP acts as staff to the Board of Trustees of the Internal Improvement Trust Fund. Intervenor Lido Key Residents Association is a Florida Not for Profit Corporation incorporated in 1980 and with its principal place of business in Sarasota. The organization represents the interests of regular users of Lido Key Beach. A substantial number of its members have substantial interests in the use of the beach at Lido Key and adjacent waters. The Project Area Lido Key is a 2.6-mile-long, manmade barrier island constructed in the 1920s, located on the Gulf of Mexico and within the City of Sarasota. North of Lido Key is New Pass, a navigation channel that separates Lido Key from Longboat Key. South of Lido Key is Big Sarasota Pass and the ebb shoal of the pass. Further south is Siesta Key, a natural barrier island. Sediment Transport In the project area, sand generally drifts along the various shorelines from north to south. There can be sand drift to the north during some storm events, currents, and tides, but the net sand drift is to the south. It is sometimes called “downdrift.” Whatever downdrift conditions existed 100 years ago, they were substantially modified by the creation of Lido Key. For decades, the shoreline of Lido Key has been eroding. Since 1964, the Corps has periodically dredged New Pass to renourish the shoreline of Lido Key. The City has also used offshore sand to renourish Lido Key. These renourishment projects have not prevented relatively rapid erosion of the shoreline. A 2.4-mile-long segment of the shoreline of Lido Key has been designated by DEP as “critically eroded.” The Big Sarasota Pass ebb shoal has been growing and now has a volume of about 23 million cubic yards (“cy”) of sand. The growth of the ebb shoal is attributable to the renourishment projects that have placed over a million cy of sand on Lido Key and Longboat Key. The growth of the ebb shoal has likely been a factor in the southward migration of the main ebb channel of Big Sarasota Pass, closer to the northern shoreline of Siesta Key. Most of the west-facing shoreline at Siesta Key has experienced significant accretion. It is unusually wide for a Florida beach. It was named the best (“#1”) beach in the United States by “Dr. Beach,” Dr. Steven Leatherman, for 2011 and 2017. The Project The federally-authorized Lido Key Hurricane and Storm Damage Reduction Project includes the use of New Pass as a supplemental sand source for renourishing Lido Key. However, the use of New Pass is the subject of separate DEP permitting. The project at issue in this proceeding only involves the renourishment of Lido Key and is named “Lido Key Beach Renourishment and Groins.” The Applicants conducted a study of the ebb shoal to determine whether it could be used as a permanent sand source to renourish Lido Key. The study consisted of an environmental feasibility study and an inlet management program for Big Sarasota Pass and New Pass with alternative solutions. The application for the Permit was a response to this study. The proposed sand source or borrow areas are three dredge “cuts.” Cuts B and D are within the ebb shoal. Cut C extends through the ebb shoal and partly into Big Sarasota Pass. Cut C generally follows an existing “flood marginal channel.” The sand from the cuts would be placed along the central and southern 1.6 miles of Lido Key to fill a beach “template.” The design width of the renourished beach would be 80 feet. The initial placement would be wider than 80 feet to account for erosion. The Permit would have a duration of 15 years. The Applicants’ intent is to initially place 950,000 cy of sand on Lido Key. After the initial renourishment, sand would be dredged from one or more of the three designated cuts about every five years to replace the sand that eroded away, and would probably be on the scale of about 500,000 cy. The numerical modeling of the proposed project assumed the removal of up to 1.3 million cy of sand from the three cuts. One of DEP’s witnesses testified that the Permit authorizes the removal of up to 1.732 million cy of sand. The record does not support that testimony. The Applicants did not model the effects of dredging 1.732 million cy of sand from the ebb shoal and pass. There is insufficient evidence in the record to support an authorization to remove more than 1.3 million cy of sand. Although the total volume of sand in the three cuts is 1.732 million cy, it is reasonable for the dimensions of the cuts and the proposed easement that is based on these dimensions to contain more material than is authorized to be removed, so as to provide a margin to account for less-than-perfect dredging operations. Therefore, it is found that the Permit authorizes up to 1.3 million cy of sand to be removed from the designated borrow areas. The findings of fact and conclusions of law in this Recommended Order that address the expected impacts of the proposed project are based on this finding. The Permit also authorizes the construction of two rubble mound groins at the southern end of Lido Key to stabilize the beach and lengthen the time between renourishment events. The groins are designed to be semi-permeable so that they “leak” sand. There are no seagrasses in the renourishment area and mostly scattered and thin patches of seagrass near the dredge cuts. The Permit requires mitigation for the potential direct impacts to 1.68 acres of seagrasses. To offset these impacts, the Applicants propose to create 2.9 acres of seagrass habitat. The seagrass habitat would be established at the Rookery at Perico Seagrass Mitigation Basin in Manatee County, about 16 miles north of Big Sarasota Pass. The Permit incorporates the recommendations of the Florida Fish and Wildlife Conservation Commission regarding protections for turtles, nesting shorebirds, and manatees. The Permit requires regular monitoring to assess the effects of the project, and requires appropriate modifications if the project does not meet performance expectations. Project Engineering The Corps’ engineering analysis involved three elements: evaluating the historical context and the human influences on the regional system, developing a sediment budget, and using numerical modeling to analyze erosion and accretion trends near the project site. A principal objective of the engineering design for the borrow areas, sand placement, and groins was to avoid adverse effects on downdrift, especially downdrift to Siesta Key. The Corps developed a sediment budget for the “no action” and post-project scenarios. A sediment budget is a tool used to account for the sediment entering and leaving a geographic study area. The sediment budgets developed by the Corps are based on sound science and they are reliable for the purposes for which they were used. The post-project sediment budget shows there would be minimal or no loss of sediment transport to Siesta Key. Petitioners did not prepare a sediment budget to support their theory of adverse impact to Siesta Key. Petitioners object to the engineering materials in the Permit application because they were not certified by a Florida registered professional engineer. DEP does not require a Florida professional engineer’s certification for engineering work submitted by the Corps. As explained in the Conclusions of Law, Florida cannot impose licensing conditions on federal engineers. Ebb Shoal Equilibrium Petitioners’ witness, Dr. Walton, developed a formula to estimate ebb shoal volume equilibrium, or the size that an ebb shoal will tend to reach and maintain, taking into account bathymetry, wave energy, tides, adjacent shorelines, and related factors. In an article entitled “Use of Outer Bars of Inlets as Sources of Beach Nourishment Material,” Dr. Walton calculated the ebb shoal equilibrium volume for the Big Sarasota Pass ebb shoal as between 6 and 10 million cy of sand. The ebb shoal has been growing and is now about 23 million cy of sand, which is well in excess of its probable equilibrium volume. The volume of sand proposed to be removed from the ebb shoal is only about six percent of the overall ebb shoal volume. Dr. Walton’s study of the use of ebb shoals as sand sources for renourishment projects supports the efficacy of the proposed project. Modeling Morphological Trends The Corps used a combined hydrodynamic and sediment transport computer model called the Coastal Modeling System, Version 4 (“CMS”) to analyze the probable effects of the proposed project. The CMS model was specifically developed to represent tidal inlet processes. It has been used by the Corps to analyze a number of coastal projects. Dr. Walton opined that the CMS model was inappropriate for analyzing this project because it is a two-dimensional model that is incapable of accounting for all types of currents and waves. However, a two-dimensional model is appropriate for a shallow and well-mixed system like Big Sarasota Pass. Dr. Walton’s lack of experience with the CMS model and with any three-dimensional sediment transport model reduced the weight of his testimony on this point. Petitioners contend that the CMS model was not properly calibrated or verified. Calibration involves adjustments to a model so that its predictions are in line with known conditions. Verification is the test of a model’s ability to predict a different set of known conditions. For calibrating the hydrodynamic portion of the model, the Corps used measurements of water levels and currents collected in 2006. The model showed a 90-percent correlation with water surface elevation and 87-percent correlation to velocity. Dr. Walton believes a model should exhibit a 95-percent correlation for calibration. However, that opinion is not generally accepted in the modeling community. Model verification, as described by Dr. Walton, is generally desirable for all types of modeling, but not always practical for some types of modeling. A second set of field data is not always available or practical to produce for a verification step. In this case, there was only one set of sea floor elevations available for verification of the CMS model. It is the practice of DEP in the permitting process to accept and consider sediment transport modeling results that have not been verified in the manner described by Dr. Walton. The Corps described a second calibration of the CMS model, or “test of model skill,” as an evaluation of how well the CMS model’s sediment transport predictions (morphological changes) compared to Light Detection and Ranging (“LIDAR”) data collected in 2004. The CMS model successfully reproduced the patterns of erosion and sediment deposition within the area of focus. Petitioners’ expert, Dr. Luther, testified that, over the model domain, the CMS model predictions differed substantially from LIDAR data and believes the discrepancies between the model’s predictions and the LIDAR data make the model’s predictions unreliable. Modeling sediment transport is a relatively new tool for evaluating the potential impacts of a beach renourishment project. Renourishment projects have been planned, permitted, and carried out for decades without the use of sediment transport models. Now, modeling is being used to add information to the decision-making process. The modeling does not replace other information, such as historical data, surveys, and sediment budgets, which were heretofore used without modeling to make permit decisions. Sediment transport is a complex process involving many highly variable influences. It is difficult to predict where all the grains of sand will go. Sediment transport modeling has not advanced to the point which allows it to predict with precision the topography of the sea floor at thousands of LIDAR points. However, the CMS model is still useful to coastal engineers for describing expected trends of accretion and erosion in areas of interest. This was demonstrated by the model’s accurate replication of known features of the Big Sarasota Pass and ebb shoal, such as the flood marginal channels and the bypassing bars. The CMS model’s ability to predict morphological trends assisted the Applicants and DEP to compare the expected impacts associated with alternative borrow locations on the ebb shoal and pass, wave characteristics, and sediment transport pathways. Together with other data and analyses, the results of the CMS model support a finding that the proposed dredging and renourishment would not cause significant adverse impacts. The Applicants extensively analyzed sediment transport pathways and the effects of alternative borrow areas on sediment transport to Siesta Key. Petitioners’ hypothesis is not supported by engineering studies of equivalent weight. The more persuasive evidence indicates that sediment transport to downdrift beaches would not be reduced and might even be increased because sediment now locked in the ebb shoal would reenter the sediment transport pathways. In addition, the proposed dredging may halt the southward migration of the main ebb channel of Big Sarasota Pass, and thereby reduce erosive forces on the interior shoreline of north Siesta Key. Wave Energy Petitioners assert that the proposed dredging would result in increased wave energy on Siesta Key because the diminished ebb shoal would no longer serve as a natural buffer against wave energy from storms. They conducted no studies or calculations to support this assertion. Because the proposed dredging would remove a small percentage of the total ebb shoal volume, the ebb shoal would remain a protective barrier for Siesta Key. Wave energy reaching the shorelines along Big Sarasota Pass or within Sarasota Bay would continue to be substantially reduced by the ebb shoal. The predicted increase in wave energy that would occur as a result of the project could increase the choppiness of waters, but would not materially increase the potential for wave-related erosion. Petitioners conducted no studies and made no calculations of their own to support their allegation that the project would significantly increase the potential for damage to property or structures on Siesta Key due to increased wave energy. To the extent that Petitioners’ expert coastal engineer opined otherwise, it was an educated guess and insufficient to rebut the Applicants’ prima facie case on the subject of wave energy. Groins Petitioners contend that the two proposed groins would adversely impact the beaches of Siesta Key because the groins would capture sand that would otherwise drift south and benefit Siesta Key. However, the preponderance of the evidence shows the groins would not extend into or obstruct the sand “stream” waterward of the renourished beach. The historic use of groins to capture downdrift resulted in adverse impacts to adjacent beaches. However, the use of groins in conjunction with beach renourishment to stabilize a renourished beach and without obstructing downdrift is an accepted practice in coastal engineering. The proposed groins would not obstruct longshore sediment transport and, therefore, would not interfere with downdrift to Siesta Key. Public Interest - General Section 373.414(1) requires an applicant to provide reasonable assurance that state water quality standards will not be violated, and reasonable assurance that a proposed activity is not contrary to the public interest. However, if the proposed activity significantly degrades or is within an Outstanding Florida Water (“OFW”), the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest. Sarasota Bay, including Big Sarasota Pass and portions of Lido Key, have been designated as an OFW. Therefore, the Applicants must demonstrate that the proposed project is clearly in the public interest. In determining whether an activity is clearly in the public interest, section 373.414(1)(a) requires DEP to consider and balance seven factors: 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 endangered 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 section 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. DEP determined that the project is clearly in the public interest because it would improve public safety by providing protection to Lido Key upland structures from storm damage and flooding, protect and enhance wildlife habitat, and provide beach-related recreational opportunities; and it would create these public benefits without causing adverse impacts. Public Interest - Safety Petitioners contend that the proposed project would adversely affect public health, safety, welfare, or the property of others because it would interrupt downdrift and substantially reduce the storm protection provided by the ebb shoal. As found above, the preponderance of the evidence does not support this contention. Public Interest - Conservation of Fish and Wildlife Petitioners contend that the proposed project would adversely affect the conservation of fish and wildlife, including endangered or threatened species. The Permit application materials provided evidence that the proposed project would have no effects, or only minimal temporary effects, on water quality, temperature, salinity, nutrients, turbidity, habitat, and other environmental factors. That was sufficient as a prima facie showing that the project would not adversely affect the conservation of fish and wildlife because, if environmental factors are not changed, it logically follows that there should be no adverse impacts to fish and wildlife. Therefore, as explained in the Conclusions of Law, the burden shifted to Petitioners to present evidence to show that adverse effects to fish and wildlife would occur. It was not enough for Petitioners to simply contend that certain fish species were not adequately addressed in the application materials. With the exception of Dr. Gilmore’s field investigation related to the spotted seatrout, Petitioners conducted no studies or field work of their own to support their allegations of adverse impacts to fish and wildlife. Dr. Gilmore discovered that spotted seatrout were spawning in Big Sarasota Pass. Such spawning sites are not common, are used repeatedly, and are important to the conservation of the species. Spotted seatrout spawn from April through September. The record does not show that the Florida Fish and Wildlife Conservation Commission, the U.S. Fish and Wildlife Service, or the National Marine Fisheries Service were aware that Big Sarasota Pass was a spawning area for spotted seatrout, or considered this fact when commenting on the project. The spotted seatrout is not a threatened or endangered species, but DEP is required to consider and prevent adverse impacts to non-listed fish species, as well as recreational fishing and marine productivity. If the proposed project would destroy a spotted seatrout spawning area, that is a strong negative in the balancing of public interest factors. The Applicants do not propose mitigation for adverse impacts to spotted seatrout spawning. Seagrass sites close to the spawning area are used by post-larval spotted seatrout for refuge. The likely seagrass nursery sites for seatrout spawning in Big Sarasota Pass are depicted in SOSS2 Exhibit 77. The proposed seagrass mitigation at the Perico Rookery Seagrass Mitigation Basin, over 16 miles away, would not offset a loss of this refuge function because it is not suitable as a refuge for post-larval spotted seatrout. The spawning season for spotted seatrout occurs during the same months as turtle nesting season, and DEP argued that the turtle protection conditions in the Permit to limit lighting and prohibit nighttime work, would also prevent adverse impacts to the spotted seatrout. However, spotted seatrout spawning is also threatened by turbidity and sedimentation in the spawning area and adjacent seagrasses. The spotted seatrout spawning area is in the area where dredge Cut B is located. If Cut B were dredged during the spawning season, it would likely disrupt or destroy the spawning site. Reasonable assurance that the proposed project would not disrupt or destroy the spawning site requires that Cut B not be dredged during the spawning season. Seagrasses that are likely to provide refuge to post- larval seatrout are near the most eastern 1,200 feet of Cut C. Reasonable assurance that the proposed project would not disrupt or destroy the refuge function requires that the most eastern 1,200 feet of cut C not be dredged during the spawning season. In summary, the proposed project would adversely affect the conservation of fish and wildlife unless dredging was restricted during the spotted seatrout spawning season, as described above. Public Interest – Navigation, Flow of Water, and Erosion Petitioners contend that the proposed project would adversely affect navigation, the flow of water, and would cause harmful erosion to Siesta Key, but Petitioners conducted no studies or calculations to support this assertion. The preponderance of the evidence shows that no such adverse impacts would occur. Public Interest – Recreational Values Petitioners contend that the proposed project would adversely affect fisheries and associated recreation because of harm to spotted seatrout and other fish species. As found above, the preponderance of the evidence shows the project would adversely affect the spotted seatrout, an important recreational fish species, unless dredging was restricted during the spawning season. Public Interest - Value of Functions Petitioners contend that the proposed project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed project because dynamic inlet system would be disrupted. As found above, the preponderance of the evidence shows the project would not adversely affect the coastal system. However, it would adversely affect the spotted seatrout spawning and refuge functions provided by Big Sarasota Pass unless dredging was restricted during the spawning season. Mitigation If a balancing of the public interest factors in section 373.414(1)(a) results in a determination that a proposed project is not in the public interest, section 373.414(1)(b) provides that DEP must consider mitigation offered to offset the adverse impacts. Although the Perico Rookery at Seagrass Mitigation Basin is within the OFW and the same drainage basin, it does not fully offset the adverse impacts likely to be caused by the proposed project. The mitigation would not offset the loss of spotted seatrout spawning and refuge functions. The mitigation for the loss of spotted seatrout spawning and refuge functions is unnecessary if the impacts are avoided by restricting dredging during the spawning season as described above. Design Modifications Petitioners contend that the Applicants did not evaluate the alternative of taking sand from offshore borrow areas for the renourishment. The record shows otherwise. Furthermore, as explained in the Conclusions of Law, the Applicants were not required to address design modifications other than alternative locations for taking sand from the ebb shoal and Big Sarasota Pass. Consistency with the Coastal Zone Management Program Petitioners contend that DEP failed to properly review the Permit for consistency with the Florida Coastal Zone Management Program (“FCZMP”), because DEP failed to obtain an affirmative statement from Sarasota County that the proposed project is consistent with the Sarasota County Comprehensive Plan. The State Clearinghouse is an office within DEP that coordinates the review of coastal permit applications by numerous agencies for consistency with the FCZMP. It is the practice of the State Clearinghouse to treat a lack of comment by an agency as a determination of consistency by the agency. With respect to this particular project, the State Clearinghouse provided a copy of the joint coastal permit application to the Southwest Florida Regional Planning Council (“SWFRPC”) for comments regarding consistency with local government comprehensive plans. SWFRPC submitted no comments. In a letter dated June 26, 2015, the State Clearinghouse reported to the Corps that “at this stage, the proposed federal action is consistent with the [FCZMP].” In a written “peer review” of the proposed project produced by the Sarasota Environmental Planning Department in October 2015, some concerns were expressed, but no mention was made of inconsistency with the Sarasota County Comprehensive Plan. Sarasota County sent a letter to DEP, dated August 24, 2016, in which it requested that the Corps prepare an Environmental Impact Statement (“EIS”) for the project. Sarasota County did not indicate in its letter to DEP that the proposed project is inconsistent with any policy of the Sarasota County Comprehensive Plan. Petitioners assert that the proposed project would be inconsistent with an environmental policy of the Sarasota County Comprehensive Plan that Petitioners interpret as prohibiting the proposed dredging. The record contains no evidence that Sarasota County believes the proposed project is inconsistent with this particular policy or any other policy of its comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP issue a final order approving the proposed agency actions, but only if the joint coastal permit is modified to prohibit dredging operations in Cut B and the most eastern 1,200 feet of Cut C during April through September. If this modification is not made, it is recommended that the proposed agency actions be DENIED; and The joint coastal permit be modified to clarify that it authorizes the removal of up to 1.3 million cy of sand. DONE AND ENTERED this 8th day of May, 2018, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2018. COPIES FURNISHED: Kirk Sanders White, Esquire Florida Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Alexandrea Davis Shaw, Esquire City of Sarasota Room 100A 1565 1st Street Sarasota, Florida 34236 John R. Herin, Jr., Esquire Gray Robinson, P.A. Suite 1000 401 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Eric P. Summa U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232 Martha Collins, Esquire Collins Law Group 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 (eServed) Richard Green, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Kevin S. Hennessy, Esquire Lewis, Longman & Walker, P.A. Suite 501-S 100 Second Avenue South St. Petersburg, Florida 33701 (eServed) Christopher Lambert, Esquire United States Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida 32207 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 28th day of March, 2019.
Findings Of Fact The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.
