The Issue Whether Respondent, Department of Transportation (DOT), properly denied Petitioner's Application for Qualification to perform work on DOT contracts which exceed $250,000.00 pursuant to Chapter 337, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code.
Findings Of Fact Petitioner, Morse Diesel Civil, LLC ("Morse Diesel"), is a new company created to perform heavy civil construction, in particular large road and bridge projects. Morse Diesel is owned 80 percent by Morse Diesel Civil, Inc., and 20 percent by KPG, Inc. Morse Diesel Civil, Inc., is owned by AMEC Holdings, Inc. KPG, Inc., is owned by Richard Kelly ("Kelly") and Jack Palmer ("Palmer"). Together, Kelly and Palmer have over 50 years' experience in heavy civil construction. On October 8, 1998, Morse Diesel filed an application for qualification with the Florida Department of Transportation ("DOT") to perform all classes of road and bridge work except for bascule bridge rehabilitation. Since the company was new and had not yet performed any work, the letters of recommendation provided in the application related to Morse Diesel International, Inc. ("MDI"). MDI is a large commercial construction management company owned by AMEC Holdings, Inc. Through DOT requests for additional information, Morse Diesel learned that DOT was interested in the experience of its principals and recommendations regarding their work. The work experience of Kelly, Palmer, John Zito, and Grant Ralston was provided to DOT in response to those requests. Under Rule 14-22.003, Florida Administrative Code, DOT thoroughly evaluated Morse Diesel and awarded it an Ability Score of 75 out of 100. DOT found that Morse Diesel had the necessary organization and management, adequate equipment, and a satisfactory work performance record which included an evaluation of the quality of completed work, any history of payment of liquidated damages, untimely completion of projects for which liquidated damages were not paid, cooperative attitude, contract litigations, claims, and defaults. Their score of 75 also included an evaluation of their integrity and responsibility. To date, Morse Diesel's ability score remains unchanged and in effect. On January 11, 1999, Morse Diesel was granted a Certificate of Qualification to perform all classes of work requested except major bridges and provided a maximum capacity rating of $200,000,000; that is, the total aggregate dollar amount of uncompleted work a contractor may have in progress at any time. Thereafter, Morse Diesel applied for a revised Certificate of Qualification to include major bridge classifications. DOT requested and was supplied additional information regarding the work experience of Kelly, Palmer, Zito and Ralston. DOT served a Notice of Intent to Deny the application for additional classes of work and Morse Diesel filed a request for a Section 120.57, administrative hearing. That case was dismissed as moot when Morse Diesel did not renew its Certificate of Qualification. On February 2, 2000, Morse Diesel applied for a Certificate of Qualification for all classes of road and bridge work except for bascule bridge rehabilitation. DOT denied its application on March 3, 2000. The decision to deny an application for Qualification is a very serious matter and each application is thoroughly evaluated by DOT. Less than one percent of all applications are denied. The decision to deny the February 2, 2000, application of Morse Diesel was made by the DOT pre-qualification engineer, Lewis Harper. The Notice of Intent to Deny the Application ("Notice of Intent") was written by Mr. Harper and Brian McGrail of the legal staff and identified the factual bases for the denial of the application and all the statutory and rule criteria utilized in the review of the application. Summary of Allegations The grounds for denial identified by DOT in the written Notice of Intent are: (a) a record of contract litigation, claims, uncooperative attitude, untimely completion of projects without payment of liquidated damages, and defaults by the management of Morse Diesel (Kelly and Palmer) when they worked for S. J. Groves and Sons, Inc., and Balfour Beatty Construction, Inc., on major bridge projects in Alabama, West Virginia, and Florida; (b) S. J. Groves was defaulted on the Cochrane Bridge Project by the State of Alabama; (c) Kelly and Palmer had substantial supervisory and management responsibilities for the Cochrane Bridge project and contributed substantially to the difficulties experienced by the Alabama Road Department; (d) The answer to Question 19-2 of the application regarding Kelly's and Palmer's involvement in the Cochrane Bridge project does not accurately reflect their role and is considered false, deceptive or fraudulent; (e) Kelly and Palmer had responsibility for prosecuting work and making decisions for filing claims on the Wierton-Stubenville Bridge project in the State of West Virginia and there were substantial delays and disputes over settlement of claims; (f) Kelly and Palmer were litigious and claims-oriented when they were associated with Balfour Beatty in Florida; (g) MDI is an affiliate of Morse Diesel because Norm Fornella is an officer is both companies and MDI was not listed in the application as an affiliate; (h) Morse Diesel did not advise DOT of the default of MDI; and (i) KPG is an affiliate of Morse Diesel because Kelly is an officer in both companies and KPG was not listed in the application as an affiliate. The application was not denied due to a lack of adequate experience or equipment. Although Morse Diesel listed the same affiliates in its 1998 application as it did in its 2000 application, the 1998 application was partially granted and the failure to list affiliates was not a ground for denial of the request for additional classes. Allegations (a)-(d): Record of Contract Litigation, Claims, Uncooperative Attitude, Untimely Completion of Projects and Defaults by Management of Morse Diesel The right to submit a claim is a valuable right of the contractor. If a contractor contends he/she is due additional time and money, it is common for him/her to pursue his/her claims rights. If the liability for unforeseen circumstances falls on the owner, the contractor typically pursues claims based upon the increased cost associated with the extra time and expense occasioned by the unforeseen circumstances. Kelly and Palmer have been involved in very difficult, highly technical jobs throughout their careers. It is common for these projects to involve a number of problems and related change items. Industry-wide, complex projects often involve change item costs ranging between 12 percent and 20 percent of the contract price. The Cochrane Bridge Project; Kelly's and Palmer's Involvement; and Application Question 19-2 Construction on the Cochrane Bridge was begun in 1985. Kelly was an executive vice president of S. J. Groves at the time and was also responsible for 30 or 40 other projects. At the same time, Palmer was a vice president of operations for S. J. Groves responsible for 10 to 12 projects. The project manager for the Cochrane Bridge project reported to Palmer and Palmer visited the project every two weeks, mainly to solve problems. The Cochrane Bridge was one of the first cable-stayed bridges built in the United States. It was designed by an Italian design firm and could not be built in accordance with the method of construction proposed by the designer. Moreover, each time there was a design problem, the Italian design firm had to be consulted, which took a great deal of time and caused delays. The Cochrane Bridge was designed to withstand a certain maximum load after construction was completed. The bridge, however, was undergoing greater stress while it was under construction. Consequently, disagreement ensued over the sequence of erection, whose responsibility it was to develop the erection sequencing, whether additional strengthening was needed during construction and, if so, who would pay for it. While these issues were addressed, S. J. Groves stopped work on the project. The State of Alabama requested Groves to work on other areas of the project during the down-time, but Mr. Groves refused for economic reasons. Alabama threatened to default Groves if they did not return to work. Kelly and Palmer attended several high-level company meetings where the issue of whether to continue the project was discussed by Franklin Groves, the owner of S. J. Groves, as well as the company's president and general counsel. Although Kelly and Palmer recommended that S. J. Groves remain on the project, their recommendation was overruled and a default was entered by the State of Alabama. Kelly and Palmer left S. J. Groves within 6 months of the default and formed their own company, RNE, in 1989. There is no reliable evidence that they "contributed substantially to the difficulties experienced by the Alabama Road Department" as charged in the Notice of Intent to Deny. S. J. Groves pursued litigation against the Alabama road department regarding the default and a settlement was reached. The contractor chosen to take over the job after the Groves default, filed claims of approximately $10,000,000 to $12,000,000, and also wound-up in litigation with the State of Alabama. There were thirty to forty vice presidents of S. J. Groves. Neither Kelly nor Palmer understood that they served as a corporate officer of S. J. Groves until after Morse Diesel had filed the 1998 application and were shown corporate forms filed with the Secretary of State. In response to Question 19-2 in the application, Morse Diesel stated: "Richard Kelly and Jack Palmer were denominated vice presidents of S. J. Groves, which defaulted on a job in Alabama in 1989. S. J. Groves had a number of people denominated as Vice Presidents and neither Mr. Kelly nor Mr. Palmer was at the level of management responsible for the decision to abandon the Cochrane Bridge Project. Both Mr. Kelly and Mr. Palmer recommended against abandoning the project and were overruled. They then left the company." There is no evidence which contradicts this finding. Allegation (e): Kelly's and Palmer's Involvement in the Wierton- Stubenville Project DOT presented no evidence to support its charge in the Notice of Intent that Kelly and Palmer were responsible for making the decision to file claims on the Wierton-Stubenville Bridge in the State of West Virginia and that there were substantial delays and disputes over settlement of claims. The only direct evidence is that Kelly was not involved in the preparation of claims or claims settlement on the Wierton- Stubenville project. The record is silent as to Palmer's involvement, if any. Allegation (f): Kelly's and Palmer's Involvement in Litigation and Claims at Balfour Beatty Kelly and Palmer were involved in Balfour Beatty's initial foray into the heavy civil construction business in Florida. In the early 1990's, Kelly met with DOT on Balfour Beatty's application for qualification to bid. At that time, DOT was on notice and inquired about Kelly's and Palmer's involvement in the S. J. Grove's default in Alabama. The Cochrane Bridge project was discussed in detail during a meeting held at DOT headquarters in Tallahassee. After being qualified, Balfour Beatty bid $82,000,000 on a large I-95 project in Broward County and was the successful low bidder by $1,000,000. In the beginning of the project Kelly and Palmer acquired staff and equipment, wrote purchase orders for materials, and supervised the project. On December 31, 1991, Dan White was hired as the project manager and Palmer visited the site every couple of weeks until problems on the project escalated. As the project manager, Dan White was in charge of the job and was responsible for the filing of claims. There were right-of-way problems and contaminated soil which delayed the project from the beginning. An initial design problem resulted from the project having been designed by two different design firms operating from different types of surveys. Consequently, the road was not aligned at the same elevation to match existing structures. These elevation problems shut down the project for months. None of the design, right-of-way, or soil contamination problems was the fault of Balfour Beatty. Nonetheless, DOT rejected all change items and required Balfour Beatty to file claims. A lawyer for DOT eventually became involved in the project in an attempt to settle the disputes which resulted in the preparation of Supplemental Agreement Number 73. SA-73 settled the claims up to that date, set new dates for project completion and paid money for completion by those dates. SA-73 was entered into based upon DOT's assurance that a constructibility review had been completed to make sure that the remainder of the project could be constructed in accordance with the existing plans and there would be no further design problems. However, the constructibility review was not complete and new design problems occurred immediately. The design of the parking lots was changed as they were being built. Core holes, used to determine the depth and density of the pavement had not been drilled. This caused more delays and claims. Balfour Beatty filed a lawsuit against DOT, Morrison Knudsen, the CEI on the project, and DOT personnel on site. The case was settled against DOT and its personnel for $4,750,000 and a jury awarded $4,300,000 against Morrison Knudsen. Balfour Beatty remains qualified to bid on DOT projects and was awarded a contract to build the Fuller Warren Bridge in Jacksonville. Kelly and Palmer, as consultants to Balfour Beatty, participated in preparing the bid for the Fuller Warren Bridge and that project is currently staffed with many of the same personnel who worked on the Broward County I-95 project, including the project manager, Dan White. The Broward County I-95 project was awarded on a bid of $82,000,000. DOT paid Balfour Beatty $97,000,000. The completion of the I-95 project was one to two years late and resulted in over 100 claims being filed. The Fuller Warren Bridge project was awarded on a bid of $81,000,000 and has cost to date approximately $94,000,000 to $96,000,000. None of the problems on the I-95 project were caused by Kelly or Palmer. Neither Kelly nor Palmer was involved in the preparation of the lawsuit or its settlement. ALLEGATION (g): Statements in the Application on Affiliations According to DOT's application, "The term 'affiliate' means a predecessor or successor of a contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term 'affiliate' includes the officers, directors, executives, shareholders active in management, employees and agents of the affiliate. The ownership by one business entity of a controlling interest in another business or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another." In its application for bid qualification, Morse Diesel listed Morse Diesel Civil, Inc. and AMEC Holding, Inc. as its affiliates. Morse Diesel did not identify either MDI or KPG as "affiliated companies" in response to question number 8 in the application. The application was prepared under the direction of Morse Diesel's President, Mitchell Becker who has a master's degree in civil engineering and a law degree. Based upon his interpretation of the definition, he determined in good faith that MDI and KPG were correctly omitted from the response to question 8 because neither met the criteria for "affiliate" as defined in the application. The answer to question 8 is the same in both the 1998 application and the 2000 application and DOT did not request additional information in the 1998 application related to the response nor did it list the failure to name MDI and KPG as affiliates as a ground for denial of the additional classes of work in 1999. There was a notation on page 2 of 19 in the 1998 application referring to MDI as a "sister company." The question requested letters of recommendation. Morse Diesel was a newly formed company, and did not have recommendations for projects it had completed. Instead, it supplied the recommendations of MDI. It became apparent to Morse Diesel through subsequent requests for additional information that DOT was interested in recommendations about the principals and management of Morse Diesel, not MDI. Consequently, when filing its 2000 application, Morse Diesel did not supply MDI letters of recommendation and instead provided recommendations on previous work completed by Morse Diesel personnel while associated with other companies. The only entities that are predecessor entities or have any control over Morse Diesel are Morse Diesel Civil, Inc. and AMEC Holding, Inc. KPG is not a predecessor or successor of Morse Diesel and has no ability to control it with 20 percent ownership. Similarly, MDI is not a predecessor or successor entity and has no controlling interest in Morse Diesel. There was no intent to hide the nature of Morse Diesel's relationship with MDI or KPG. The fact that Mr. Becker and Mr. Fornella are officers of both Morse Diesel and MDI is clearly stated in their résumés in the application. It is DOT's policy to deny application for misrepresentation only when it is intentional. Morse Diesel listed MDI as an affiliate in its Virginia application because the definition of "affiliate" in that application was broader and appeared to encompass MDI. Footnote 3 on page 7 of the audited financial statements refers to a transfer of funds from MDI to Morse Diesel. Mr. Becker, as president of Morse Diesel testified that the footnote in the financial statement attached to the application was a mistake. MDI has never advanced money to Morse Diesel. The advances made to Morse Diesel were made by Morse Diesel Civil, Inc. Mr. Becker as president of Morse Diesel is aware of the financial condition of the company and reviews the financial statements each month. There is no pooling of equipment or income between Morse Diesel and MDI. Allegation (h): Notice of the MDI Default Question 19-2 on page 16 of 23 of the application asks whether "any officer or partner of your organization has ever been an officer, partner or owner of some other organization that has failed to complete a construction contract?" In response to that question, Morse Diesel explained in the application that Kelly and Palmer had been associated with S. J. Groves when it defaulted on the Cochrane Bridge project in Alabama, but otherwise answered the question "no." Although Mr. Becker and Mr. Fornella are officers of both MDI and Morse Diesel, the application did not reveal the default of MDI on a project in St. Louis because the company is contesting the default and has not as yet failed to complete that construction contract; it is in litigation. There is no credible evidence that Morse Diesel or Mr. Becker intentionally omitted any information from the 2000 application. Allegation (i): See Findings for Allegation (g). Morse Diesel has demonstrated that it is competent and has experience to prosecute the work requested in the application. DOT has allowed at least one other applicant to amend its application to identify related companies as affiliates after DOT has denied certification on that basis. The résumés in the application and evidence presented at hearing reflect the work experience of the management of Morse Diesel and indicate extensive experience in heavy civil construction, including highly complex projects. The management of Morse Diesel has experience constructing all the types of road and bridges for which qualification is sought. Morse Diesel has been qualified in New Jersey, North Carolina, South Carolina, Virginia, Delaware, and Pennsylvania. Furthermore, Pennsylvania qualified Morse Diesel on the condition that Mr.Palmer remain associated with Morse Diesel and involved in any project awarded there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Morse Diesel be permitted to supply DOT with corrections to the unintentional inaccuracies in its application and be pre-qualified in the classifications for which it applied. DONE AND ENTERED this 5th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2000. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Brian F. McGrail, Esquire Brian A. Crumbaker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether the license of Respondent, Mark Craig Fetherman, P.E., should be disciplined for negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes, as more specifically alleged in the Administrative Complaint filed in this case on May 27, 2000.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Florida Engineers Management Corporation, provides prosecutorial services to the Board of Professional Engineers as authorized by Section 471.038(4), Florida Statutes. The Board of Professional Engineers is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. Respondent, Mark Craig Fetherman, P.E., is a licensed professional engineer holding License No. PE40116. Prior to the instant case, he has not been subject to disciplinary action. Respondent has a bachelor's degree in physics and mechanical engineering and a master's degree in management information systems. Respondent has developed software to calculate windloads for wood and metal trusses. He operates his own company and offers engineering services to others which include performing load calculations for residential homes. Petitioner's expert witness, Wilbur T. Yaxley, P.E., is a civil engineer primarily concerned with building and structure-type work. He has approximately 24 years' engineering experience and has done consulting and forensic work since 1993. This is his first case involving light-gauge metal roof trusses. He has never designed a roof truss. He has never been involved in the manufacture of light-gauge metal trusses. Petitioner's expert witness testified that light-gauge steel trusses are a fairly new process. Light-gauge steel (16, 18, 20 gauge) has become a major structural building material in the last five years. Unlike the wood truss industry, there isn't much published information on light-gauge metal trusses, and what information that is available is not approved or accepted by the Standards Building Code. The Standards Building Code refers to American Iron and Steel Institute (AISI) documentation: "The design of structural members cold-formed from carbon or low alloy steel shall conform to AISI Specifications " While Mr. Yaxley is familiar with "finite element analysis" (using computer software to analyze a system or component to see how it reacts under certain loading), he personally does not do finite element analysis. He has not analyzed the truss system in this case as a whole. Respondent had contracted with Marjorie and Art Schiavone to design a residence which included a connected airplane hanger. In addition, Respondent was to "procure steel roof trusses for the residence," specifically, the scope of work included materials, truss manufacture and delivery, and modifications needed due for foundation and/or wall configurations. Art Schiavone (hereinafter "Schiavone") accepted Respondent's plans without objection. Schiavone, who had little building experience, as property owner acted as his own general contractor. Petitioner's expert testified that "Schiavone really thought Mr. Fetherman was supervising his construction." Respondent testified that he was not supervising construction and Petitioner's expert agreed that was not Respondent's role. There was a great deal of personal conflict between Schiavone and Respondent. Schiavone prepared and dated his Complaint to the Board of Professional Engineers on November 16, 1999. He then showed the Complaint to Respondent's partner "to get satisfaction out of Mr. Fetherman." Respondent left the job in mid-December. The Complaint was received by the Board of Professional Engineers on December 28, 1999. Schiavone told Respondent's partner that he would withdraw the Complaint if Respondent would continue as engineer on the job. There is conflict in the testimony of Schiavone and Respondent. I find the testimony of Respondent to be more credible. Some of the roof (and hanger) trusses were damaged when they arrived at the job site. The repair process involved removing the damaged member and replacing it with a new piece of metal. Holes had to be redrilled and screws were replaced. Respondent was not present when some of the trusses were repaired. Similarly, Respondent was not present when some of the roof trusses were modified. Schiavone modified the trusses without the benefit of shop drawings after Respondent left the job. Lisa Connelly, Plans Examiner for the Marion County Building Department, testified that Respondent came to her office and told her that Schiavone had altered the trusses without Respondent's supervision and that Respondent was going to remove himself from the job due to deviations in engineering, in that the trusses were not what Respondent had engineered. Respondent noted 13 construction items which had not been done correctly, at least one-half of which would create problems with the trusses being installed properly. When Schiavone poured the wall lintel, he failed to install connector straps as per plans. Respondent had provided Schiavone detailed drawings showing the location of two connector straps per truss heel. In most instances, as built, there was only one connector strap per truss heel and it was not properly located to fit into the truss heel gusset plate. Petitioner's expert found from 10 to 18 screws in most truss heel gusset plates. Respondent had photograph enlargements (taken for another purpose) which showed 18 screws in each truss heel gusset plate in the particular photographs. These photographs were taken to show transportation damage and would have showed the condition of the trusses before any repair or modifications. The typical wall cross-section drawing shows two connector straps with seven screws per strap. Had there been two connector straps per location, had the connector straps been properly located, and had they been installed into the truss heel connection gusset plate as per plans, there would have been 32 screws per truss heel, which would have exceeded design criteria. It was not Respondent's responsibility to ensure that Schiavone built the structure according to the plans. Respondent's General Summary Sheet specifies 25 self-drilling screws at the heel connection of the hanger truss. Petitioner's expert opines that 54 No. 10 self-drilling screws are needed. Respondent testified that his software calculates the whole truss system, not just the heel connection standing alone, and that instead of shear, the heel connection would be subjected to rotation stress. Respondent calculated varying windloads, safety factors, and the number of screws required for varying windloads and determined that 25 screws would be needed for 120 mph windloads with a 3.5 safety factor; 54 screws with the same general safety factor would allow a 300-320 mph windload. Petitioner's expert opines that both the hanger truss heel connection and the scissors truss would require a heavier gusset plate. He did not, however, calculate forces and loads on the entire truss system. He simply ran calculations on a normal pin-connection truss design. Respondent determined, using his software, that a 20-gauge piece of steel is satisfactory for the gusset plate. Petitioner's expert opines that in the foundation plan, the thickened portion of foundation slab would be for an interior load-bearing wall. Petitioner's expert acknowledges that he is not sure what the loads would be on the interior load-bearing wall. He does know that the bearing point on some of the trusses and the interior load-bearing wall would not match up by 42 inches. But, he testified that he did not know whether this would make a difference or not. The interior load-bearing wall was constructed after the trusses were installed and after Respondent left the job. There is a jog shown in the floor plan for the interior load-bearing wall which is inconsistent with the foundation plan. Respondent testified that the plans were as he intended. He designed the interior load-bearing wall footer to run straight because its easier for the individuals laying the foundation to lay it correctly. More importantly, the trusses are two bearing points trusses, and do not need the interior load-bearing wall. The interior load-bearing wall simply adds to the windload capacity. Respondent acknowledges that on 5 interior trusses, the bearing points do not match up with the interior load- bearing wall, but this is not critical because the trusses are two bearing point trusses and these 5 trusses are interior trusses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Petitioner enter a final order finding that Respondent is not guilty of "negligence" as alleged in the Administrative Complaint dated May 22, 2000. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Minerva Higgins, Esquire 1770 Fowler Drive Merritt Island, Florida 32952 Douglas Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether the Department of Transportation abused its discretion in its determination to go forward with the design for a high-rise, fixed span bridge to replace the existing Ringling Bridge, and failed to provide a meaningful opportunity for the public to participate in the planning and selection process.
Findings Of Fact The Petitioner, City of Sarasota, is a municipal corporation located in Sarasota County, Florida. The Respondent, Department of Transportation, is the state agency responsible for the siting, construction, maintenance, and regulation of the state highways located within Florida. The Intervenors are entities with a legitimate interest in the outcome of these proceedings. The Ringling Bridge was constructed in 1958 and connects the City of Sarasota with Bird Key, St. Armand's Circle on Lido Key, and Longboat Key. The road between the mainland and the keys is classified as a manor urban arterial, and spans Sarasota Bay and the Intracoastal Waterway. At the time of its construction in 1958, the Ringling Bridge had a life expectancy of between 40 and 50 years. It is a drawbridge 2,214 feet long and 57 feet wide, with a grade of just less than 3 percent. It has two 10.5-foot-wide travel lanes going in each direction which are separated by a raised concrete median. Five-foot-wide sidewalks are located on either side of the roadway. The bridge in its closed position provides a maximum clearance of 21 feet above the water. During the lifetime of this bridge, the Department has expended time and money on its maintenance and repair, and though it has been and remains safe for the public, it has deteriorated over time. Toward the end of the 1980's and into the early 1990's, Department bridge inspectors operating out of the office of the Department's Districts 1 and 7 Structures and Facilities Engineers, noted the beginnings of structural and mechanical problems. The Department's Structures and Facilities Engineers are responsible for the inspection and maintenance of bridges within the Districts. The site on which the bridge is located is not conducive to the extended good health of the bridge. Specifically, corrosion due to chlorides and sulfates in the water has caused extensive deterioration to the bridge substructure, foundation, and steel components. Demonstrable wear can be seen on the movable parts of the bascule section; decks, rails and curbs evidence deficiencies; caps and beams supporting the longitudinal beams show deterioration of both concrete and steel; supporting piles and the concrete portions of the bascule section evidence cracks and spalls; and corroded bearings need repair or replacement. These deficiencies have been identified in several sources, the most significant being a Final Engineering Preliminary Report (FPER) regarding structural defects, rendered in February 1994. As a routine part of its operation, the Department keeps track of bridges within its inventory which need repair by means of a Deficient Bridge List (DBL). Bridges determined to be functionally obsolete or structurally deficient, and, if not constructed or reconstructed within the preceding ten years, which have a sufficiency rating of less than 50 percent, are automatically placed on the DBL as candidates for replacement. The sufficiency rating is a categorization which measures serviceability of a bridge. It measures factors such as structural capacity, type of use by the public, and functional obsolescence, on a scale from zero to 100, and the lower the number, the more deficient the bridge. The rating given the Ringling Bridge in the late 1980's and early 1990's was less than 47 percent, and because of the rating, along with the fact that it was functionally obsolete and it had not been constructed or reconstructed within the preceding ten years, it was placed on the DBL in the late 1980's as a candidate for replacement. The term "functionally obsolete" is used to describe the Ringling Bridge because it is considered not to be up to current safety and design standards. Specifically, it has no inside or outside shoulders; no barrier between the outside traffic lane and the narrow combined pedestrian/bicycle sidewalk; no effective barrier between opposing lanes of traffic; and narrow traffic lanes. The action of placing a bridge on the DBL does not mean it will be replaced, however. The determination of replacement is not made lightly. It is a highly complex process that is based on input from many divisions of the Department as well as from, possibly, the relevant metropolitan planning organization (MPO). It is an extensive and time-consuming process, the implementation of which does not guarantee replacement. Therefore, the Department continued and continues to maintain and repair the Ringling Bridge through the present time. Because of the interaction between the Department and the various MPOs, the MPOs, acting in concert with the local governments within their jurisdiction and with the Department, develop several planning strategies for work contemplated within its area of responsibility. These include a long-range transportation plan, an annually updated transportation improvement plan (TIP), and an annual unified planning work program. Transportation projects, which include bridge replacements, are programmed in five-year intervals, updated annually, reviewed in public hearing by the Florida Transportation Commission, and approved by the Legislature through the Department's adopted work program. Specifically pertinent to the instant project is the Sarasota-Manatee MPO. This organization is made up of members selected on an equitable geographic population ratio basis from all local governments within the two counties. The City of Sarasota has two representatives on the MPO. All other municipalities have one each. The local MPO has been studying the traffic problems between the two counties and the barrier islands for en extensive period of time. An April 1988 MPO report, approved in June 1998, dealing with drawbridges in the two counties recognized public dissatisfaction with bridge-related congestion and delays and recommended strategies to reduce travel delay associated with the bridges. Problems identified in the report included motorist, bicyclist, and pedestrian disregard for traffic control signals related to a bridge opening, excessive speed across the bridges, operationally faulty and unreliable draw-spans and out-of- operation lights and signals, and improper span alignment. The report ultimately concluded that the problem of delay could be resolved by replacement of all draw-spans with high-rise, fixed- span bridges. This recommendation is consistent with the then and still current Department thinking. The above-mentioned report was not the only pronouncement of the MPO on the subject of drawbridges. The subject of bridges from the mainland to the barrier islands, including the addition of a new bridge to Longboat Key, and the replacement or repair of the Ringling Bridge, was repeatedly considered. It had been determined that the construction of an additional bridge to Longboat Key was not feasible. The MPO's 1990 TIP, preliminarily approved by the MPO on July 23, 1990, included a replacement for the Ringling Bridge. The Department exercises no direct control over what happens in the MPO meetings. Representatives of the DOT attend MPO general meetings and meetings of the MPO's technical advisory committee, but have and exercise no vote. In September 1990, after a comprehensive analysis of the project by the various governmental bodies which make up the MPO, and by the organization's own technical and citizen advisory committees, the MPO formally included the replacement for the Ringling Bridge in its 1989/1990 TIP, assigning it the number-one priority in the county, and the replacement project has occupied a priority position on the MPO's TIPs since that time. Subsequently, the Department included the project in its 1990 tentative work program which the MPO reviewed and approved on October 22, 1990, and in its 1990 Adopted Work Program which was submitted to and approved by the Legislature. In late 1991, the Department applied to the federal government for approval of a bridge replacement study for the project, which study was to be funded through the federal bridge replacement program. Criteria for this approval include the requirements that the replacement bridge generally serve the existing traffic patterns of and be reasonably close in length to the existing bridge; that the existing bridge be removed or taken out of service; and if a high-rise, fixed-span bridge, the replacement have a minimum clearance of 65 feet. The federal approval for the study was granted on November 18, 1991. In Florida the implementation of transportation projects is accomplished in four separate phases. These include preliminary development, design, right-of-way acquisition, and construction. For those projects which require them, preliminary design and engineering (PD&E) studies, which are the responsibility of the Department's environmental management section, are accomplished during the preliminary development phase. These studies are not the responsibility of the Department's permitting section, and are not a part of, but precede the permitting phase of a project. In the planning scenario, impacts on resources listed in the PD&E, such as environment, demography, and the like, are assessed, but not to the extent they are considered during the permitting process which follows. The guidelines for transportation project planning are, for the most part, non-specific. Neither state nor federal guidelines for transportation planning require the consideration of a specific list of alternatives. Basically, the planning process is designed to evaluate the potential impacts of the project on the human environment, and where substantial impact is found, then consider alternatives to the project under consideration. The test for sufficiency of the process is the reasonableness and rationality of the environmental and engineering considerations, and the opportunity for public input. The beginning of the planning process for the Ringling Bridge replacement began with the inclusion of the project in the Department's 1990 work program. It must be noted that at no time was the replacement of the existing Ringling Bridge with a high- rise, fixed-span bridge set in stone. Use of the term "replacement" in Department files signifies no more than the Department's intention to consider modification in some fashion of the existing structure. This modification could range from no more than repair and rehabilitation of the existing structure, through modification and widening, to replacement of the existing structure with a completely new structure, the type of which might be one of several under consideration. The Department contracted with Greiner, Inc., a consulting firm that specializes in transportation planning, to provide the project management services for this project. The planning study to be conducted by Greiner was to conform to the requirements of pertinent Federal Highway Administration (FHWA) regulations, with which the Greiner personnel who would work on the project were familiar. These regulations require that at least one fixed-bridge alternative be included with any proposal for a movable bridge in order to permit comparative analysis of the various considerations, benefits, and impact arising out of each. The regulations also require the selection of a fixed-span bridge whenever practicable, but if the various factors considered support a movable bridge instead, then a cost-benefit analysis to support the need for a movable bridge shall be done as part of the preliminary planning process. In the instant case, the cost analysis was done by Greiner. It supported a high-rise, fixed-span replacement. When a project is proposed by the Department which is to be accomplished with the use of federal funds, or when a federal permit is required, it must be publicized to federal, state, and local governmental agencies as proposed federal action. This notice, in the form of an Advance Notification, provides an overview of the project and the expected environmental impact. The Ringling Bridge project falls within that classification. Therefore, an Advance Notification was sent out to all interested state, federal, and local governments as well as regional authorities, requesting general comments on the project, reflecting that both a bascule and fixed-span bridge designs were under consideration. It was noted that more specific input would be called for during the permitting process to follow. A meeting on a proposed Notice to Proceed to the selected planning consultant in this case was held at the Department on February 20, 1992. It was pointed out at this meeting that four bridge alignments had been developed for consideration. It was specifically noted that though a bridge replacement was the Department's general objective at the time, the planning study was initiated by the Department with no preconceived determination of where the bridge should be located. It was impossible at that time to predict what would be the end recommendation to the FHWA because of the numerous variables expected in the environmental and engineering aspects of the project, and the unknown public position to be determined through public workshops and hearings. At this point, it should be noted that the notice to proceed was issued initially prior to the determination to move forward with the initial elements of the project. However, the original notice to proceed was withdrawn and not issued until the appropriate time. Though this initial action may appear to have been inappropriate, it was corrected in a timely manner, and no substantive defect in the process is seen to have occurred therefrom. The Department did not act on this project within a vacuum. Though not required by federal or state direction to do so, in January 1992, at the request of the City of Sarasota, the MPO established a citizen advisory committee made up of those citizens whose interest would be most affected by the project. The Ringling Bridge Replacement Task Force was to assist the Department in its study of proposed alternatives and to ensure that important community interests were considered. This task force met at least monthly between its inception and September 1993. The meetings, at which representatives of the MPO and Department staff and consultants were in attendance, were publicized in the local newspapers and offered members of the general public an opportunity to comment on the proposed alternatives. Through this means, a dialogue between the planners and the public was encouraged and maintained. Not only was each existing original alternative discussed by the task force, the group also identified and expanded consideration to several other possibilities, so that through the exploration process, nine different high-rise fixed- span bridge alternatives, two drawbridge alternatives, two tunnel alternatives, a widening and rehabilitation alternative, and a no-build alternative were considered. Each of these possibilities was evaluated as to its physical location, resultant changes in traffic patterns, engineering considerations, bio-environmental impacts, impacts on existing parks and recreational areas, and impacts on navigation on the intra-coastal waterway, as well as its effect on residential areas and businesses, visual impacts, costs, and other like issues. To present as informative a picture of the project as possible, Greiner Engineering prepared and had for display models, mounted comparisons of alternatives, and depictions of bridges at the different heights under consideration. Greiner also developed numerous informational handouts which described the alternatives under consideration and the different elements of the package. Once the task force had heard the public input based on the information made available, and had considered each alternative, the members recommended to the MPO that further detailed study and analysis should be directed at building a parallel replacement bridge just north of the existing bridge. That recommendation was adopted by the MPO at its meeting on April 26, 1993. Efforts by the Department subsequent to that MPO determination were directed toward developing a detailed summary of environmental and social impacts of the proposed bridge as well as cost comparisons between the replacement bridge to the north and the no-build alternative, even though a substantial public interface and dialogue continued. Within the replacement category were two drawbridges, one with a 21-foot minimum vertical clearance and one with a 45-foot minimum vertical clearance. During the course of the planning study carried out to determine the most appropriate solution to the Ringling Bridge situation, the responsible parties involved, that is the Department personnel and the consultants hired by the Department to oversee the planning process, followed the provisions and dictates of the Department's Planning Design and Engineering Manual (manual). The Department's PD&E manual is intended to aid Department personnel and consultants in complying with the requirements of a PD&E study for a transportation project. It contains references to Department procedures and policies and to pertinent state and federal laws regarding transportation. This manual was used by both Greiner and Department personnel during the study done for this project, and while it is wise to follow the guidelines set forth in the manual, there is latitude for interpretation. As a result, during the course of this study, utilizing the manual and considering the public input, the planners reduced the bridge replacement alternatives. There were, initially, 14 corridor and other alternatives considered for this project which were identified in the documentation by letter. Alternatives "A" through "I" related to bridge alternatives; "T" related to tunnel alternatives, and "R" related to rehabilitation and widening. As impacts and costs were analyzed in more detail, the Department reduced the scope of the study to more appropriate alternatives. Of these, the "E" alternatives related to those north of the existing bridge; "F" alternatives related to those south of the existing bridge; "T2" was one tunnel alternative; and there was a "no build" alternative. After even further study and consideration of continuing public input, the most viable alternatives were those described as "E1," a low-level bascule bridge; "E2" a mid-level bascule alternative; "E3", a high-level; fixed-span alternative; all north of the existing bridge; and the no-build alternative. These alternatives were endorsed by the Task Force, the MPO, the City of Sarasota, and the Town of Longboat Key. After due consideration of all recommended alternatives, the Department concluded that the most appropriate alternative, and the one recommended by it, was replacement of the Ringling Bridge with a 65-foot fixed-span bridge. The Department's recommendation was concurred in by the FHWA. Throughout the study, those factors bearing on the selection were studied to determine the most appropriate selection. Included in these factors were the potential impacts of configuration chosen on the human environment. Ann Venables was selected as the Department's environmental project manager for this project, and it was her responsibility to ensure that all impacts to the environment which might be expected to result from the various alternatives under consideration were studied and evaluated in terms of being reasonable, feasible, and in compliance with the manual guidelines. In furtherance of that requirement, Department personnel and project consultants reviewed the matters received in response to the Advance Notifications sent out previously, collected environmental data, conducted field reviews, and initiated coordination with environmental agencies. The data received by the Department was refined and updated continuously. Among the various categories of impact studied during the preparation of the planning documents were those on neighborhoods, communities, and the economies thereof; on archaeological and historical resources in the area; on publicly owned lands; on the natural environment; on air and noise quality; on navigation; and on hurricane evacuation and wind and flooding effects. To be sure, the factors were not studied in as great detail as they would be studied further on in the proceeding when, and if, permitting procedures were to take place. However, adequate study was conducted of each of the subject matters to allow the planners, and those decision-makers who reviewed the plan, to reach a reasonable and informed conclusion on the issues before them. Specifically, considering the likely impacts of the various options on neighborhoods and communities and their economic health, the Department's analysts, working with local government representatives, conducted an extensive inquiry during which public comment was repeatedly solicited. In addition, the comprehensive plans prepared by both Sarasota County and the City were examined and analyzed with a view toward determining whether land use or community travel patterns would be affected by any of the alternatives under consideration. The City's director of planning and development determined that all were in compliance with the City's comprehensive plan. However, it appears that certain alignments might isolate Bird Key, while other alignments might alter traffic patterns around St. Armand's Circle. Nonetheless, no neighborhoods would be split or isolated by virtue of any of the replacement alternatives. The Department's analysts also found that urban renewal and urban blight considerations were compatible; hazardous material disposition would not be adversely impacted; and civil rights and minority concerns would be properly treated by all replacement alternatives. Property values, low-income housing, and minority neighborhoods were not expected to be impacted significantly, but if any adverse impact were to occur, it would most likely be on Bird Key, a high-income neighborhood. When potential visual impacts were considered, it was found that while a few residences on Bird Key might suffer a degrading of their view, construction of a replacement bridge with fewer supports, with removal of a retaining wall, would remove some view impairments existing with the current bridge. A cultural resources assessment survey conducted on the project area revealed no sites protected within this category, and it was determined to be unlikely that any property currently listed on or eligible for listing on the National Register of Historic Places would be adversely affected by this project in any of its configurations. This determination was concurred in by the state Historic Preservation Officer. The U.S. Transportation Act of 1966 permits the use of publicly owned property, such as parks, recreation areas, wildlife refuges, or historic sites in transportation projects only if no feasible alternative exists and all possible harm to the property is minimized to the greatest extent possible. Department analysts identified all potentially involved sites early in the process and narrowed them once the most likely alternatives were determined. The sites identified were Bird Key Park and Causeway Park. This information was communicated to the FHWA which determined that the provisions of the Act do not apply to Causeway Park because it was constructed from fill material, is owned by the Department, and was, from its inception, considered possibly to be used for future transportation improvements. As to Bird Key Park, Sarasota's City Engineer advised his City Manager, the City Commission, and the Department, that properly done replacement construction adjacent to the park should result in no impact to the park. The preferred replacement alternative was designed not to require right-of-way at Bird Key Park. For that reason, the FHWA determined there was no U.S. Transportation Act involvement. The City contended that the Department failed to modify alternatives E-1 and E-2 to avoid Bird Key Park so as to make the high-rise, fixed-span bridge look better. The Department's project manager categorically denied this, noting that while such modification could have been done, it would not have been consistent with sound engineering practices. No evidence was presented to demonstrate any obfuscation by the Department as alleged here, and it is found none took place. Further, despite the fact that the FHWA concluded that Bird Key Park would not be impacted by the preferred alternative, Ann Venables directed Greiner to prepare an impact evaluation of the 21-foot bascule bridge on the potentiality that the preferred alternative could differ after the November 4, 1993, public hearing or at some other future time. In fact, it appears the Department did not select an alternative to be forwarded to FHWA until after that public hearing. It is clear that a detailed scientific study of the potential impacts of this project on the natural environment was not made as a part of the planning study conducted by Greiner, but the impacts were considered nonetheless. Field studies were done early on, as were inventories of features and species. Contact also was made with appropriate local, regional, state, and federal agencies, and data gathered from all sources was continually upgraded throughout the study. Studies done during this process indicated there would be potential impact to species and their habitat, but the Department ultimately determined that the recommended alternatives would not have a major adverse impact on or threaten the existence of any endangered species; that direct adverse impact to habitat would not occur, and that any indirect adverse impacts could be minimized by the taking of precautionary measures. These conclusions are documented in the Department's Threatened and Endangered Species Report prepared for this project. Potentially impacted wetlands, Outstanding Florida Waters, and water quality were all adequately studied by the Department and its consultants. The results of these studies were coordinated with the various agencies having regulatory or supervisory authority over the areas. Many of these authorities conducted their own analyses of potential impacts. Environmental agencies contacted during the study tended to agree that those alternatives having the least adverse impact to threatened and endangered species, wetlands, seagrasses, and water quality would be those adjacent to the existing bridge or, of course, the no- build alternative. Careful consideration was also made of the storm water run-off which might be expected from a larger, higher bridge than that currently existing. It was the consensus of those consulted that by virtue of the fact the new bridge would not create more vehicular traffic, and those cars using the bridge would move more and sit less time idling and waiting for an open bridge, the larger amount of impervious surface would not result in a higher concentration of contaminants in storm-water run-off, but might well result in an improvement in the water quality of the run-off over that which currently exists. Much of this is speculation, however, and a scientific determination, ordinarily accomplished in the permitting phase of the process, need not be made at this juncture. A wetland evaluation report was prepared by the Department and its consultants to analyze the collected data, reflect agency comments, identify permitting and coordination requirements, and list future commitments for protection of wetlands. This report, along with a wetlands coordination package, was circulated to pertinent agencies in an effort to indicate how the Department addressed their concerns during the PD&E process. Among the agencies consulted was the Southwest Florida Water Management District (SWFWMD), which was asked to review the report and the concept utilized for dealing with storm water drainage, and to concur, if possible with its future commitments. This was done, and the PD&E plan, incorporating the storm water package which included all practicable measures to minimize harm to wetlands, was forwarded to FHWA for consideration and approval. Throughout the hearing, the City attempted to show that the analysis of environmental impacts conducted as a part of the PD&E study was insufficient. In doing so, the City seemed to disregard the fact that the PD&E process is an initial planning exercise and does not require the level of detail required in the permitting process. The Department presented the testimony of witnesses to indicate that the studies made, the data collected, the field reconnaissance done, and the coordination among agencies effected during the study of the replacement project for the Ringling Bridge, were extensive and met or exceeded all requirements. It is so found. Among the impacts to the natural environment studied were those to the air and the effect of noise upon the environment. Mr. Dobler, an environmental scientist for Greiner, performed an air quality hydrocarbon analysis and a noise impact analysis that could be expected to result from the various bridge alternatives. This report concluded that since the project does not increase roadway capacity, there would be no difference between replacement and no-build as to air quality; and building of any of the replacement structures would neither cause violations of air quality standards nor interfere with transportation control measures. As was found during the consideration of the quality of storm water run-off, the high- rise, fixed-span bridge would not result in vehicles idling on the bridges or the approaches thereto, and, notwithstanding the City's contentions to the contrary, there is no indication the high-rise bridge would have any appreciable effect on hydrocarbon emissions. The analysis done on noise impact by the various horizontal and vertical alignments indicated that two residences on Bird Key might experience noise impact from the preferred alternative, the fixed span high-rise bridge. Abatement measures sufficient to eliminate or reduce noise impacts for all alternatives were determined to be either unfeasible or unreasonable. The consideration which received by far the most discussion at the hearing related to the impact the height of the preferred alternative would have on navigation on the Intracoastal Waterway. The ultimate authority on bridge height lies with the U.S. Coast Guard, to whom the Department must defer. The City contends that the Department conducted the most cursory and ineffective survey of navigational needs of seamen on the waterway, and while rejecting the City's contention that only lip-service was given to this issue, it is true that a comprehensive survey was not conducted. However, at this stage of the proceeding, a comprehensive survey is neither required nor appropriate. The Coast Guard, subsequent to the PD&E process and independent thereof, will conduct its own permitting process which will constitute a complete analysis, to include public hearings independent of those conducted by the Department and the MPO, relative to the ability of the bridge contemplated to meet the reasonable needs of navigation. However, as a part of the PD&E study the Department conducted a more-than-cursory evaluation of the established navigational patterns in the area, first determining the minimum vertical clearances required by Coast Guard published regulations and other published Coast Guard standards and considerations. It also consulted with users to study the reasonable needs of navigation, going so far as to publish a Notice to Mariners, advising users of the study. No negative comments in response to the notice were received from users by the Department. The Coast Guard's Bridge Permit Application Guide, published under the auspices of the U.S. Department of Transportation, recognizes the mission of the bridge administration program is to protect freedom of navigation in a balanced manner. Bridges should be constructed in such a manner ". . . as to provide for the reasonable needs of navigation, not for all the needs of navigation." Throughout the PD&E process, the Department issued periodic project newsletters to advise the public of the ongoing process and such matters as were deemed pertinent for public knowledge. In January 1993, for example, the Department noted the Coast Guard requirements for bridge heights over the Intracoastal Waterway, noting the minimum was 21-feet for drawbridges, and 65-feet for fixed spans. In this same issue, the Department noted that both bascule and fixed spans were being considered. In February 1993, the Department again advised that the both a bascule and fixed span were being considered, and that the optimum height for a replacement bridge had yet to be determined. A public workshop was held on March 16, 1993, at which a handout was distributed. This document again noted that consideration was being given to both a draw-bridge and a fixed span, and that a final determination had not been made. This handout also noted that if a fixed span was chosen, Coast Guard rules required it be of a height of at least 65-feet. At that same public workshop, a video presentation pointed out that a fixed span would result in the inability of at least four percent of the boat census to pass beneath it. Of the 376 written public comments received at this March 1993 workshop, none constituted an objection to a high-rise bridge based on boat traffic. In addition, the October 1993 newsletter noted that three bridge heights were under consideration: 21- and 45-foot high-draw bridges, and a 65-foot fixed-span. Another public workshop was held in November 1993. Of the 420 public comments received as a result of that workshop, not one contained a complaint regarding the restriction on boat traffic resulting from a 65-foot-high-bridge. During the course of its planning operation, Greiner conducted a study of the navigation needs in this area. Its representatives collected data from area marinas, conducted public interviews, made height surveys by counting the number of vessels, by height, which passed through the Ringling Bridge when up. The survey conducted by the Department reflected there will be some boats which will not be able to pass under a 65-foot fixed-span bridge and will have to detour. That fact alone, however, does not constitute an unreasonable interference with navigation. The Coast Guard will ultimately determine whether there is an unreasonable interference with navigation, and will set the height of this bridge, if approved. That determination will be made during its bridge permitting process. For the purpose of the PD&E study, however, the Department's survey, made fully available to the public and the FHWA, is adequate to constitute meaningful public notice and opportunity for input. Other factors considered pertinent to the planning process included a study of impacts of the replacement alternatives on hurricane evacuation and wind and flooding. According to the County's emergency management director, the best alternative from an evacuation and safety standpoint would be the widest, highest, and best-engineered bridge. A former County Engineer, Dr. Goodknight, who is familiar with the area's history of flooding was of the opinion that nothing related to a 65-foot- high bridge would cause flooding in the area. Since the only factor having a material bearing on bridge evacuation is water surge, the effect of wind speeds on a 21-foot or a 70-foot bridge would be the immaterial. Expert testimony presented by the Department indicated wind does not present a problem for a high profile bridge or a bridge which has a minimum height of 65 feet. It was the director's position that improvements to the existing bridge would enhance evacuation efficiency and improve emergency response times. Environmental and navigation issues are not the only considerations, however. The study, even at the planning stage, also considered the feasibility of alternative designs, and the traffic considerations, structural factors, and physical features related to each. For example, the Department considered the impact of increased bridge grade on the potential for accidents, the use of the facility by trucks, and the availability for and impact on bicyclists and pedestrians. The City and its related Intervenor contend that a 5 percent grade, as called for on the fixed high-rise alternative, would deprive cyclists, elderly pedestrians, and others who use the bridge as a means of recreation and exercise, of a means to gratify that need. Department planners surveyed individuals in a leadership position among the concerned class who had knowledge of the needs of the community in that regard. Based on their inquiry, the Department's engineers concluded that increasing the current bridge's grade of 3 percent to 5 percent on a high-rise, fixed-span bridge would have little if any effect on the capacity of the bridge to handle cars and trucks; and in fact the Department's guide for design, its planning manual, indicates that a 5-percent grade will accommodate all those cyclists and pedestrians in whose interest the City speaks, even recognizing the more advanced age of the population, and would be consistent with the Americans with Disabilities Act. The planners also carefully considered the effect any of the alternatives would have on safety and transportation concerns. The Ringling Bridge now extending over Sarasota Bay lacks some safety features. No matter what type of bridge is considered to replace it, the new bridge would incorporate current safety features. These would include inside and outside shoulders, 12-foot-wide vehicle lanes, 10-foot-wide sidewalks, and concrete barriers dividing the on-coming vehicle traffic and shoulder from the sidewalk. Ordinarily in PD&E studies, the Department is guided by bridge design standards contained in the manual of the American Association of State Highway Transportation Officials (AASHTO), and these standards were considered in this study. However, AASHTO standards are not necessarily pertinent to the circumstances existing for the Ringling Bridge, and changes may be made. For example, grade standards may properly be modified; shoulder widths may be exceeded safely; and lane width criteria may be adapted if appropriate. It was ultimately concluded that so long as the traffic intersections controlling traffic onto the causeway of which the bridge constitutes an integral part are not modified, none of the replacement alternatives would increase the number of vehicles crossing the bridge. Further, the Department is committed to maintaining the Ringling Bridge in a safe and operational condition, making such repairs as are necessary even if by doing so, it extends the life of a structure programmed for replacement. In fact, the Mayor of the Town of Longboat Key and a member of the MPO, John Redgrave, indicated that the Department is continuously maintaining the bridge in an effort to correct such problems as rebar explosions in the pilings which cause the pilings to deteriorate and become weaker. In its planning process, the Department looked at the economics of the various replacement alternatives and also conducted both a life-cycle cost analysis comparing user costs versus benefits, utilizing methods prescribed for that purpose by AASHTO, and a Cost Effectiveness Analysis. The Cost Effectiveness Analysis Technical Memorandum, published in March 1993, concluded that this high-level alternative had a present value at $8 million of almost twice that of the 45-foot bascule alternative. It would provide greater user benefits and maintenance/operations savings over the analysis period, and would have a significantly lower implementation cost as well. The Life Cycle Cost Analysis Technical Memorandum included a comparison of the long-term routine and periodic costs of the alternatives under consideration, and concluded that the fixed-span bridge alternative would be significantly less costly to maintain and operate over a 75-year estimated life-span than would the 45-foot bascule bridge. Rehabilitation and widening were also considered and studied, but determined to be impractical. This option would require additions to the existing structure which would not last as long as a new structure; and a temporary, floating bridge would be required to re-route traffic during construction. Further, this option carried a higher cost when compared to other alternatives. Most important, engineering opinion concluded that rehabilitation would not be practical and replacement would ultimately be a structural necessity. Another important consideration was the need of the Town of Longboat Key. The Ringling Bridge is a part of the main artery connecting the City to this municipality of 9,000 year- round residents which swells to a seasonal population volume of approximately 20,000. Town residents have only one clinic staffed by a nurse practitioner as a local health facility. There are no hospitals on Longboat Key, and when serious medical care is required, residents must cross the Ringling Bridge to get to Sarasota General Hospital. The Ringling Bridge is the primary evacuation route to the mainland for residents of Longboat Key. Experience has shown that the Ringling Bridge supports heavy traffic at all times except early in the morning. Traffic has been described as congested, and the bridge is considered to be the worst of the several bottlenecks on the Key-mainland route. Traffic counts indicate that approximately 25,000 vehicles a day cross the bridge from Sarasota to the Town of Longboat Key, and another 25,000 go to other parts of the barrier islands. The March 1993 public workshop conducted by the Department, and referenced earlier, was designed to afford to the public an opportunity to submit comments, ideas, and suggestions regarding the replacement project. Numerous audio-visual aids were employed at the workshop which provided information to the public as to why and how the study was being conducted and the alternatives under consideration. The public was invited to provide input, and, according to the MPO Chairman, Mr. Mills, the presentation was "well done". Public input received at the workshop through written comment sheets indicated public preference for the 65-foot, fixed-span high-rise, bridge just north of the existing bridge. A video-taped presentation on the project, viewed by approximately 220 people at the workshop and by the MPO the next day, was also viewed by the City Engineer who, on April 9, 1993, commented favorably about it to the City Manager, indicating it was professionally done. Once the workshop was completed and the public input received, the Department moved forward in earnest with the planning process. A value engineering team was established to hold a two-day session to consider the various replacement alternatives. Though disputed by the City, the best evidence of record indicates that a rehabilitation and widening alternative was rated less high than several high-rise, fixed-span alternatives. Finally, on June 30, 1993, the Department was advised by E-mail, that Mr. Morgan, the Department's responsible party, had advised moving forward with developing a staff consensus. This notice did not suggest forwarding to FHWA a selection of a specific recommendation as to either location or design, nor did it in any way establish that the Department had eliminated all other alternatives to a high-rise, fixed-span bridge. Though it was, perhaps, inartfully drawn, all that was intended by this message, as is clear from other evidence relating to the process, is that the Department wanted to inject new life into the PD&E process which at that point in time had been on-going for over two years. The Department's responsible District Secretary during the time the PD&E process was on-going, worked with the MPO to help formulate that organization's objectives and to generate a coordinated program to keep the public involved in the process. In July 1993, he advised the MPO of a public hearing, to be held in November 1993, when the Department would bring up for discussion all alternatives, rejecting none. The notice period in advance of the hearing was designed to allow the Task Force time to develop and submit its recommendation to the MPO, and to afford the public the maximum opportunity to be involved and to comment on all alternatives. Again, no alternative was excluded. At the time he spoke with representatives of the MPO, the Secretary admitted that the Department felt the 65-foot, high- rise, fixed-span bridge was the best transportation alternative, but also noted that the best transportation alternative was not necessarily the best overall alternative. An MPO meeting was held on August 23, 1993, at which the Town of Longboat Key presented a resolution in support of the 65-foot, fixed-span bridge. Somewhat later, however, the Sarasota City Commission, after considering detailed technical analyses on bridge replacement, recommended to the MPO that it support a lower bridge. Over the years thereafter, the City and the Department engaged in a continuing dialogue regarding this project. However, negotiations which occurred after the date the project was forwarded to FHWA for approval are irrelevant to the issues herein. For that reason, the objection to Exhibit 531, ruling on which was deferred at hearing, is hereby sustained and the exhibit excluded. The public hearing held in November 1993 was preceded by substantial notice to the public by the Department. The notice of hearing was clear and readily understandable. It advised not only of the date, time, and place of the hearing, but also what was to be discussed. Approximately 450 individuals were present, of whom 53 testified. Approximately 375 written comment sheets were also submitted by members of the public. The Department presented for consideration its preferred alternative, the 65-foot high-rise, fixed-span bridge, but it also presented for public consideration the other viable alternatives under study, even some which the consultant, Greiner, did not recommend. The rehabilitation and widening alternative was not presented, however, because both the Department and its consultant had concluded it was neither cost-effective nor feasible. As such, it was not in the public interest to present it. The "preferred alternative" was so named because, the Department concluded, it was the most reasonable and most feasible alternative. However, use of the term "preferred" does not equate with the term "selected" or "recommended," as applied to alternatives. Use of the term "preferred" does not mean that alternative will be used. Past history of the Department establishes that point. Public sentiment, as evidenced by the spoken and written comments at the public hearing, was clearly in favor of the 65-foot, high-rise, fixed-span bridge. On November 22, 1993, the MPO met and formally voted 11 to 4 to replace the existing bridge with a high-rise, fixed-span bridge running parallel to and north of the existing bridge. Prior to taking the vote, the MPO permitted public comment. Of the 26 individuals who spoke, 17 were in favor of the fixed-span alternative, and nine were against it. The MPO's vote was taken subsequent to the presentation to it of a detailed staff analysis which pointed out several factors considered relevant to the decision. These included: improved traffic flow of both vehicles and vessels (safety and quality of life); separation of motor vehicles from cycles and pedestrians (safety); lower hydrocarbon emission levels when compared to both the 21- and 45-foot bascule bridges (environment); an acceptable grade (quality of life); Departmental commitment to the highest available level of design amenities (aesthetics); lower cost (economics); and Coast Guard preference to replace bascule bridges with fixed-span bridges (governmental agreement). Throughout the planning process, in addition to the public workshop and the public hearing, the Department published and disseminated a series of newsletters which discussed the projects scope, costs, alternatives, and options. The Department received numerous written comments and petitions regarding this project, of which 2,279 were tabulated. Of the total received, 1,446 were in favor of the fixed-span alternative. The Department did not formulate its final position on the recommended alternative until after the MPO meeting of November 22, 1993. The Department's final recommendation was first articulated in the Environmental Determination document which was forwarded to FHWA for approval on February 14, 1994. The FHWA approved the location and concept design recommendations for the recommended alternative, the high-rise, fixed-span bridge, on March 4, 1994. Petitioners have contended that the Department's decision was made in advance of an opportunity for public participation, and that the efforts at public participation were a sham. As an example, they cite the fact that the Department entered into a contract with Greiner for the PD&E study before it should have, and that the notice to proceed signed by the Department's representative was rescinded as premature. In fact, this transaction occured, but a case of this magnitude cannot be resolved on the basis of one mistaken action. Numerous individuals, including experts with considerable experience in this process, testified to the extensive opportunity for public involvement afforded by the Department in this study. None of the experts who testified on behalf of the Department could find any indication the Department had pre-selected an alternative. To the contrary, those with the most balanced familiarity with the process, those who deal with it on a regular basis from a position outside the Department, concluded that the Department had followed the applicable law in this process; had conducted a more comprehensive PD&E study than was usual in a project such as this; had provided for more public involvement than on any other project with which they were familiar; and had exercised sound discretion in its recommendation. The weight of evidence in this proceeding supports that conclusion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Secretary of the Department of Transportation enter a final order finding that the Department did not abuse its discretion in this case and upholding the PD&E report as approved by the FHWA. DONE AND ENTERED this 21st day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1999. COPIES FURNISHED: David M. Levin, Esquire Andrew Fritsch, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A. Postal Drawer 4195 Sarasota, Florida 34237 Theodore C. Taub, Esquire Katherine C. Castor, Esquire Jonathan Ellis, Esquire Broad & Cassel 100 North Tampa Street Suite 3500 Tampa, Florida 33602 Richard L. Smith, Esquire Nelson Hesse 2070 Ringling Boulevard Sarasota, Florida 34237 Andrew H. Cohen, Esquire 2033 Main Street Suite 400 Sarasota, Florida 34237 Henry P. Trawick, Esquire 2033 Wood Street Suite 218 Sarasota, Florida 34237 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1992.
The Issue The issue in this case is whether Respondent, the Southwest Florida Water Management District (District), should grant Environmental Resource Permit (ERP) No. 43023532.000 authorizing Respondent, Florida Department of Transportation (DOT or Department), to construct the Pinellas Bayway Bridge Replacement and associated surface water management system.
Findings Of Fact The Florida Department of Transportation is a state agency charged by statute with the construction, maintenance, and operation of the State Highway System. The Pinellas Bayway Bridge in Pinellas County, Florida, is part of the State Highway System. The Southwest Florida Water Management District is a political subdivision created pursuant to Chapter 61-691, Laws of Florida (1961), which exists and operates under the Water Resources Act, Chapter 373, Florida Statutes. The District has the regulatory authority to implement the ERP program in Pinellas County, Florida. The existing Pinellas Bayway Bridge (the Existing Bridge) is a two-lane bascule structure located within and spanning Boca Ciega Bay, an Outstanding Florida Water. It has three-foot wide walkways on both sides, with no shoulders for the travel lanes. The Existing Bridge connects the cities of St. Petersburg and St. Pete Beach, and was built approximately 40 years ago upon perpetual easements "for public State Road right of way purposes" conveyed in 1960 and 1961 from BOT/IITF to the State Road Department, the predecessor of the Department. The perpetual easements do not contain any restrictions on the perpetual right to construct and maintain a "public state road upon and/or over said land," other than conditions that recognize prior rights of the United States of America and prior grants by the Board of Trustees. The proposed replacement of the Existing Bridge will be located entirely within the boundaries of those perpetual easements. The practice and policy of the Board of Trustees of the Internal Improvement Trust Fund (BOT/IITF), and the Department of Environmental Protection (DEP), has been that, under Section 253.002(1), Florida Statutes, perpetual easements such as those conveyed for the Bayway Bridge are sufficient authorization for expansion of bridges within the boundaries of the perpetual easements. Since the time of construction of the Existing Bridge, the area served by it has transformed from a largely uninhabited barrier island to a densely developed area. The Department has been studying and preparing for replacement of the Pinellas Bayway Bridge since the early 1980's, and studying alternatives since the early 1990's. In the year 2000, with the concurrence of the Pinellas County Metropolitan Planning Organization, the cities of St. Petersburg and St. Pete Beach, and the United States Coast Guard, the Department determined that the best alternative for replacing the Existing Bridge was a fixed-span, high level bridge with four travel lanes and a pedestrian walkway along the southern side of the bridge (the Replacement Bridge or Project). The fixed-span alternative was selected as superior to low-level and mid-level bascule options for superior traffic efficiency, superior access for emergency vehicles, superior emergency evacuation, and improved boat traffic. As part of the design process of the Replacement Bridge, the Bayway Bridge Beautification Committee was formed to provide the Department with input from the residents as to the aesthetics of the Replacement Bridge. The Bayway Bridge Beautification Committee was made up of representatives from the neighborhood and homeowners associations in the area, and submitted a report containing suggested improvements that were incorporated into the ultimate design of the bridge, including lighting, hardscape, and landscape features. Each of the three replacement alternatives (low-level, mid-level, or high-level) would result in the elimination of parking spaces within existing Department right-of-way adjacent to the east and west ends of the Existing Bridge. These parking spaces are intended for the use of drawbridge tenders and Department maintenance vehicles; currently, they also are utilized by fishermen and others recreating on the Existing Bridge. Neither the cities of St. Petersburg nor St. Pete Beach provides public parking in the vicinity of the Existing Bridge. Navigation and Shoaling The height of the Replacement Bridge will allow all boats using the Intracoastal Waterway (ICW) with mast heights of less than 65 feet to freely go under the bridge. Large boats currently must wait for the Existing Bridge to open and have to either circle or move forward and backward while waiting for the drawbridge to open. This will not be the case with the proposed bridge. The fenders lining the channel crossing under the proposed bridge will also be widened to 100 feet from the existing 90 feet. The Replacement Bridge also will be higher in places other than the ICW crossing, including 39 feet high near the west end where Mud Key Channel crosses (versus 9 feet under the Existing Bridge). As a result, more boats will be able to pass under the Replacement Bridge in Mud Key Channel than with the Existing Bridge, and fewer will have to use the so-called Entrance Channel paralleling the south side of the bridge between the ICW and Mud Key Channel. In this respect, the Replacement Bridge will improve navigation. Petitioners contend that additional use of Mud Key Channel, coupled with changes in the ability of boaters to see other boats on the opposite side of the bridge will change, will create a navigation hazard and safety concern for boaters, wading fishermen, and occasional swimmers using Mud Key Channel and the Entrance Channel. As for wading fishermen and occasional swimmers, their activities occur mostly to the south of the extreme western end of the bridge, and boats using Mud Key Channel would pass them whether they pass under bridge at Mud Key Channel or pass under at the ICW and use the Entrance Channel to or from Mud Key Channel. The Replacement Bridge will not increase the number of boats passing by them. As for boaters' ability to see, the Existing Bridge is lower, has more but narrower pilings. The higher Replacement Bridge will have fewer pilings but they will be wider, including 22 feet square pile caps 7 feet high at the water line. In terms of boaters' ability to see through the bridge, the Existing Bridge and Replacement Bride have advantages and disadvantages, depending on the particular circumstances and location of the boats, wading fishermen and occasional swimmers in question. It was not proven that the Replacement Bridge, compared to the Existing Bridge, will create navigation hazards and safety concerns. The Replacement Bridge will extend some 70 feet into the Entrance Channel to Mud Key Channel. Currently, the width of the Entrance Channel is 215 feet, narrowing to 130 feet at the junction with Mud Key Channel. The width of Mud Key Channel at some points is only 100 feet. The Replacement Bridge will narrow the Entrance Channel to a minimum width of 145 feet, will not affect the width at the junction with Mud Key Channel, and will not affect the width of Mud Key Channel itself. The currents in this area are felt least within the Entrance Channel. Boats are currently able to pass each other safely in the Intercoastal Waterway and the narrow confines of Mud Key Channel, which are both narrower than the Entrance Channel will be upon completion of the Project. Boats with masts higher than 65 feet will not be able to go under the Replacement Bridge. Petitioner, Michael T. (Ted) Irwin, has a boat with a 90-foot mast (with radio antenna), which he keeps at his residence north of the bridge site. Once the Replacement Bridge is constructed, he will have to either access the Gulf of Mexico by heading north through Johns Pass, or move his boat to another mooring location. Mr. Irwin testified that Johns Pass, while navigable in his boat, is much more difficult and much less desirable for him than going through the drawbridge at the Existing Bridge. There are over 11,000 boat crossings per year by boats with masts too tall to pass under the Existing Bridge. Of these 11,000, Mr. Irwin's boat accounts for 20 to 60 of those crossings. Mr. Irwin testified that there are three or four other boats in the area with masts taller than 65 feet. Even assuming that those boats are kept north of the bridge site, which was not clear from the evidence, there was no evidence as to the extent to which those boat owners would be inconvenienced by having to use Johns Pass, or as to whether they could make suitable alternate arrangements. Clearly, the Replacement Bridge will have some impact on navigation. While the Replacement Bridge will require Mr. Irwin to change his current boating practices, and while the Entrance Channel will be narrower, the impact on navigation in the area will generally be positive. For the vast majority of boaters, boat traffic will move more freely through the area and, at least in some circumstances, with better visibility. With respect to sediment transport or shoaling, the Department introduced evidence in a bridge hydraulics report showing that the Replacement Bridge would not experience scour around the pilings during either a 100- or 500-year storm event. In addition, there was expert testimony that harmful erosion or shoaling would not occur as a result of the Project. Petitioners offered only speculation on the likelihood of erosion or shoaling, candidly admitting that their concern was that such conditions "might" occur. There is an undisputed evidentiary basis to conclude that sediment transport or shoaling will not occur around the Replacement Bridge. Fishing and Recreation People currently fish from the Existing Bridge using the two three-foot wide catwalks. Although not designated for public parking, people who do not live within walking distance of the bridge site currently park on either end of the Existing Bridge within the Department's right-of-way. All of these parking spaces will be eliminated by the Replacement Bridge; but they would be eliminated under all designs considered, including a low level drawbridge. Other bridges in immediate vicinity are not used for fishing due to lack of nearby parking. Fishing will be allowed from the Replacement Bridge from the single 11-foot wide multi-use path along the south side of the Replacement Bridge. While the multi-use path will allow fishermen and other users to get farther away from passing car traffic, fishing on strong incoming (south-to- north) tides will be less desirable from the south side of the Replacement Bridge, and the higher bridge elevations also will make fishing generally less desirable. There are several other locations within 20 minutes of the Existing Bridge that are available for fishing by the public. In particular, the fishing pier at the old Skyway Bridge in southern Pinellas County is specifically designated for public fishing, as are several other locations. The Replacement Bridge's multi-use path also will be more user-friendly for people who want to walk or bike across. Also, the path will continue from the bridge site to the intersection of State Roads 679 and 652, providing a safe sidewalk where none currently exists. The path will ultimately tie into a trail system linking the area to Fort DeSoto Park. The Replacement Bridge will also be more wheelchair accessible than the Existing Bridge. Water Quality Boca Ciega Bay is an Outstanding Florida Water. The ambient existing water quality in Boca Ciega Bay meets the standards which are applicable to that waterbody in the location of the Replacement Bridge, as demonstrated by the water quality data gathered from Pinellas County and by the Department. Such data were comprised of dissolved oxygen readings from the County and the analysis of water samples provided by the Department. Petitioners questioned whether such water quality data were sufficient, but testimony from District experts demonstrated the sufficiency of these data. Petitioners introduced no evidence to indicate that water quality does not meet standards in the vicinity of the Project. Within the limits of the Project, including the bridge site, the western approach to the bridge, and State Road 679 to the intersection of State Road 652 of the eastern side of the bridge site, there currently is a very limited amount of surface water runoff treatment. Although the project will involve adding several acres of impervious surface, after construction there will be less untreated surface water runoff than exists currently. The proposed treatment system will primarily involve three ponds: two lined effluent filtration ponds along State Road 679; and a wet detention pond located adjacent to the Sunshine Skyway Bridge, known as the compensation pond. The compensation pond is proposed because there is not enough right-of-way in the project area to build ponds or other treatment systems to treat the runoff from the Replacement Bridge. The compensation pond will treat surface water runoff from the Skyway Bridge that today is discharged untreated into the same Outstanding Florida Water, Boca Ciega Bay. The two effluent filtration ponds will be lined with an impermeable material up to the level of seasonal high ground water elevations within the vicinity of those pond sites to prevent groundwater drawdown and prevent interaction between water in the pond and groundwater. DOT introduced detailed site plans, engineering studies and credible expert engineering testimony that the three stormwater treatment ponds will detain stormwater runoff in a manner that complies with the presumptive criteria in the District's Basis of Review. In addition, the two effluent filtration ponds have been oversized so as to treat 100 percent more volume than is required for treatment systems discharging into Outstanding Florida Waters. Less untreated surface water runoff will be discharging into Boca Ciega Bay after construction than is today. Further, much of the impervious area to be added will not be automobile travel lanes, and these areas will not generate the heavy pollutant loadings associated with the travel lanes. In addition, the pollutant loading from the travel lanes on Replacement Bridge will be less than from the Existing Bridge. At the Existing Bridge, pollutant discharge into Boca Ciega Bay occurs in several ways. First, oils and greases from the actual drawbridge mechanism itself drip straight down into the Bay. With the elimination of the drawbridge, this discharge will stop. Second, stopped cars and trucks waiting for the drawbridge to open and close drip oils and greases onto the roadway in greater concentrations than traffic which is moving. This was evident by examining photographs of the travel lanes on either side of the drawbridge, and the dark staining of the roadway where traffic is stopped. With no drawbridge to stop traffic, less oil and grease will be discharged. Third, boats waiting for the existing drawbridge to open also discharge undetermined amounts of uncombusted gasoline and oil into the water. (Generally, their engines are kept running and in and out of gear to maintain steerage while waiting for the bridge to open.) Those boat engines will have to run for less time in the vicinity of the Project if the boats do not have to wait for the existing drawbridge, thus reducing the discharge of uncombusted gasoline and oil into the Bay. Another boost to water quality will occur as a result of the mitigation for the Project. District rules allow impacts to wetlands and other surface waters to be mitigated, and the Department does so in accordance with the program set forth in Section 373.4137, Florida Statutes. That program calls for the Department to contribute a dollar amount to the District based upon the expected acres of wetlands and other surface waters impacted by the project. Mitigation provided for this purpose in accordance with Section 373.4137, Florida Statutes, and approved by the Secretary of DEP, is deemed to satisfy mitigation requirements. In this case, the mitigation project to compensate for impacts by the Replacement Bridge to sea grass beds within the affected surface waters is a water circulation project at Fort DeSoto Park, located at the southern end of Boca Ciega Bay, in the same receiving waters where the impacts will occur. The project consists of opening a dead-end section of the Bay created by the SR 679 causeway to Fort DeSoto Park to improve water flow. Improved water flow will improve dissolved oxygen levels, which in turn will improve conditions for sea grasses, which will in turn lead to more dissolved oxygen. This Project has been approved by separate final order by DEP, satisfying the mitigation requirement. In addition, the Department and the District demonstrated that the mitigation project will improve water quality in the receiving waters. The Project will not degrade water quality in Boca Ciega Bay, and the record is also clear that the Project will actually improve water quality in the Bay. This means that the Project is consistent with the Surface Water Improvement Management Plan adopted by the District, which calls for improved water quality and increased sea grasses. Petitioners called no witnesses with respect to the water quality issue. Although Petitioners listed a water quality expert, James Shirk, as a witness in answers to interrogatories, and even though Respondents deposed Mr. Shirk; Petitioners not only decided not to call Mr. Shirk as a witness, they objected to introduction of Mr. Shirk's deposition into the record of the case. In their PRO, Petitioners criticized a lack of studies to determine the efficacy of proposed Ponds 1 and 2 and the Compensation Pond. They also criticized a lack of studies of water quality impacts of untreated discharges from a 18-inch pipe to be constructed at the western end of the bridge. They argue that, due to the asserted lack of studies, reasonable assurances were not given either that the Project will not degrade water quality or that it will result in a net improvement in water quality. But, based on the evidence in this case, studies of the kind Petitioners want to require were not necessary to prove that the Project will not degrade water quality but rather will result in a net improvement in water quality. In their PRO, Petitioners also cited the deposition testimony of Jeremy Craft that Ponds 1 and 2 discharge into Class III waters "in the vicinity of a Class II water body" and criticized the lack of a "plan or procedure with respect to protection of the Class II waterbody that demonstrates that the regulated activity will not have a negative impact and will [not] result in violations of water quality standards in such Class II waters, as required in the District's Basis of Review [BOR] Section 3.2.5(b)." But there was no other evidence that Ponds 1 and 2 will be a "regulated activity" or "system" that is "adjacent or in close proximity to Class II waters." To the contrary, the evidence that the nearest Class II waters were over a mile away from the Project site and would not be affected negatively by the Project. Similarly, Petitioners in their PRO contend that the Compensation Pond "discharges to Class II waters and waters that are prohibited for shellfish harvesting" and that "[t]here has been no plan or procedure provided with respect to protection of that Class II waterbody that demonstrates that the regulated activity will not have a negative impact on Class II waters and will not result in violations of water quality standards in such Class II waters, as required in the BOR Section 3.2.5(a) and (b)." The basis cited for this criticism was reference to "Shellfish Harvesting Area Classification Map #42 (Effective: June 18, 1997)," that appears to show the Compensation Pond adjacent to or in close proximity to an area where shell fishing is prohibited. There was no testimony explaining the map, which did not purport to map Class II waters. In any event, if the Compensation Pond is "adjacent or in close proximity" to Class II waters which are not approved for shellfish harvesting, and if it is considered to be the "regulated activity" or "system," creation of the Compensation Pond to treat previously untreated discharges will not have a negative effect on Class II waters or result in violations of water quality standards in the Class II waters. Petitioners in their PRO also cite the Final Roadway Soil Survey and Stormwater Pond Report (Report) prepared by the Department's consultants for the purpose of establishing the fact: "Groundwater data beneath the roadway near the east end of Pond 2 indicate that the seasonal high groundwater table is between 4.0 and 4.5 feet, NGVD." Although never made explicit, Petitioners' PRO seems to raise the specter that the liner for this pond was deficient because it only came up to 2.5 feet, NGVD. No witness explained where the Report establishes the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2," or if it even does. It appears that Sheet 9 of Appendix B of the Report indicates a single datum point of groundwater at approximately 4.0 feet, NGVD, on June 1, 2002; meanwhile, Table 4 of Appendix A of the Report also states that the "Estimated Seasonal High Groundwater Table" at the same location is at the "Approximate Elevation" of 1.2 feet, NGVD. In any event, even assuming that the "seasonal high groundwater table" "beneath the roadway near the east end of Pond 2" were 4.5 feet, NGVD, all of the expert testimony on the subject of the liner was that it came up high enough to function properly in the location of Pond 2. The last water quality issue raised in Petitioners' PRO addresses the amount of impervious surface runoff treated under the Replacement Bridge Project. Specifically, Petitioners seem to contend that BOR 5.8(b) was interpreted to only require treatment of the runoff contributed by the two additional automobile travel lanes provided by the Replacement Bridge Project; the area of the existing travel lanes and the multi-use path was not figured in the calculation. While not clearly explained, the expert testimony was that the Project met the requirements for water quality treatment under both BOR 5.2.e. and BOR 5.8(b) and (c). BOR 5.2.e. requires projects discharging into Outstanding Florida Waters to provide treatment for a volume 50 percent more than otherwise required for the selected treatment system. BOR 5.8(b)1. requires that, for "off-line treatment systems and on-line treatment systems . . . which provide storage of the treatment volume off-line from the primary conveyance path of flood discharges," the contributing area to be used in calculating the required treatment volume is the area of new pavement. It appears that BOR 5.8(b)1. was used for the parts of the Project not treated by Ponds 1 and 2. The "area of new pavement" was considered, for purposes of BOR 5.8(b)1. to be just the new travel lanes; the area of the multi-use path apparently was not added for purposes of BOR 5.8(b)1. because it would not be expected to add much, if any, pollutant loading. In addition, BOR 5.8(c) provides: When alterations involve extreme hardship, in order to provide direct treatment of new project area, the District will consider proposals to satisfy the overall public interest that shall include equivalent treatment of alternate existing pavement areas to achieve the required pollution abatement. While also not clearly explained, the expert testimony was that BOR 5.8(c) also applied and was met by the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order approving the application of the Florida Department of Transportation for Individual Environmental Resource Permit No. 43023532.000. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003. COPIES FURNISHED: Robert C. Downie II, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 William D. Preston, Esquire 2937 Kerry Forest Parkway Suite B-1 Tallahassee, Florida 32309-6825 Steve Rushing, Esquire David C. Ryder, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 E.D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues presented in this hearing concern the request by Ortega Island, Inc. to be granted permission, by the State of Florida, Department of Environmental Regulation, to construct a bridge across the Stockton Canal in Duval County, Florida. The permit review is under the general authority of Chapters 253 and 403, Florida Statutes, and associated rules.
Findings Of Fact In July, 1980, Ortega Island, Inc., hereinafter referred to as Respondent, filed an application with the State of Florida, Department of Environmental Regulation, which would allow it to construct a bridge giving access from a mainland area to an adjacent spoil island known as Ortega Island. The spoil island was created in 1959. This proposed project is found in Duval County Florida. The island is approximately 42 acres in size and is adjacent to the Ortega River in an area roughly two and a half miles from the confluence of the Ortega and St. Johns Rivers. The body of water to be spanned by the proposed bridge is known as the Stockton Canal, a man-made canal. That canal is connected at its north and south ends to the Ortega River. The State of Florida, Department of Environmental Regulation, which will now be referred to as the Department, reviewed the initial application of July, 1980, and a revision of May, 1981. The review was conducted by the Northeast District Office of the Department. A further modification was offered through a revised construction plan which dates from May, 1982. Respondent's Composite Exhibit No. 4 is constituted of the initial applications related to the project design and certain comments made by the Department of Environmental Regulation. Respondent has sought the approval of its permit application based upon the belief that the project involves dredging below the mean high water line and filling above the mean high water line of waters of the state. Consequently, Department approval has been sought pursuant to those Sections 253.123 and 403.087, Florida Statutes, and the related provisions in Chapters 17-3 and 17-4, Florida Administrative Code. In the initial permit application of July, 1980, the applicant had proposed to construct a 20-foot concrete span, eight feet high, which was to be connected to the mainland and Ortega Island by the placement of fill material, thereby building causeways which extended approximately 55 feet into the canal from each end of the shore. This would have entailed the placement of 3,000 cubic yards of fill waterward of the mean high water line and reduced the canal width to 20 feet at the area of the bridge site. The Department did not look with favor upon the elimination of marine habitat by the construction of causeways and the attendant adverse impacts in the hydrographic regime in the Stockton Canal. This is shown in the Department's remarks found in Respondents' Exhibit No. 8 admitted into evidence. To address those concerns, the Respondent employed Dr. Barry Benedict, an expert in the field of hydrographic engineering, who conducted hydrographic studies of the Stockton Canal. These studies are found as part of Respondents' Exhibit No. 6 admitted into evidence. In summary, Dr. Benedict recommended that the bridge span be no less than 48 feet. Pamela Sperling, the hydrographic expert of the Department, reviewed these materials and concurred that a minimum span length of 48 feet would be necessary. This is reflected in a memorandum offered by Ms. Sperling, which is Respondents' Exhibit No. 10 admitted into evidence. The May, 1981, revision of the project calling for 52 foot bridge span is the result of the Benedict study and the remarks of Sperling. That proposal would allow for 39 foot causeways on each end of the bridge and 2,000 cubic yards of fill material waterward of the mean high water line. Notwithstanding the acceptance of the hydrographic improvements related to the new provision, the Department still was concerned about adverse impacts to marine habitat which would occur with the placement of fill on related biological resources. Likewise, the Florida Game and Freshwater Fish Commission, National Marine Fisheries Service, United States Department of Interior, and United States Environmental protection Agency had expressed concern about this destruction. Those comments are found in Respondents' Exhibit Nos. 13 through 16 respectively, as admitted into evidence. In the face of these reservations, the May, 1982, revision was made, which would allow a total span of the waterway, eliminating causeways and fill material below the mean high water line. Following the May, 1982, revision, the Department issued its notice of intent to grant the permit. Notification was made on September 10, 1982, a copy of which may be found as Respondents' Exhibit No. 17 admitted into evidence. The permit application appraisal by the Department was conducted by Tim Deuerling, who is an Environmental Specialist who assesses dredge and fill permit applications. Mr. Deuerling additionally has expertise in the field of biology and water quality analysis related to dredge and fill activities. His appraisal of the project is based upon several visits to the site, and his impressions of the site are outlined in a report of October 30, 1980. A copy is found as Respondents' Exhibit No. 8 admitted into evidence. On April 1, 1983, a further revision was offered to the permit application. The initial aspect of that revision concerned stormwater disposal for a concrete bridge. The remaining aspect of the revision was the suggestion that a timber bridge be considered as an alternative structure. The April 1, 1983, revision formed the basis of the consideration of the project by way of final hearing. The Petitioners protested consideration of the April, 1983, revision contending that the revision was not appropriately reviewed by the agency, in that it constituted a substantial revision in the application process and was not the application which the agency had accepted in indicating its proposal to grant the permit in September, 1982. The hearing was allowed to go forward over the objection of the opponents to the permit, it having been determined by the Hearing Officer that the revisions of April, 1983, were not so remarkable that they would require a new permit application or further agency study and review prior to the formulation of proposed agency action in deciding to grant or deny the permit request. Further, it was determined that the April, 1983, revision could be considered without the necessity of additional notification of the issues to be considered in the hearing, there being an adequate opportunity for the applicant to develop the record in favor of those modifications and to allow the Department, Petitioners, and Intervenor to form the needed record response. In the dispute as considered at the final hearing, the petitioners and Intervenor contended that the project should not be allowed because it fails to comply with requisite provisions of 253 and 403, Florida Statutes, and the associated rules related to those statutes. In addition to the protest which has been made by those individuals having party status in this instance, there have been other written statements in opposition which may be found as Respondents' Exhibit No. 18 admitted into evidence, a composite exhibit. Those objections by Petitioners and Intervenor are more specifically detailed and discussed in further sections of this Recommended Order. Under the April 1, 1983, proposal, the concrete bridge is composed of a system of hollow cord deck members supported by concrete piles. There are six pile bents and four of those are within the waterway. The spacing between the piles is 24 feet minimum horizontal clearance, with the bottom of the bridge deck being eight feet above the water at the lowest clearance point. The bridge span is 130 feet, to allow the bridge construction to be completed without the placement of fill below the line of mean high water on either end of the bridge. The bridge approaches under the new proposal are constituted of asphaltic concrete roadways supported by fill material and that fill material is separated from the waterway by the use of sheet pilings. Water drainage from the deck surface of the concrete bridge would flow through a collection system, which is part of the bridge structure. The water, which is released from the bridge surface on the mainland side, would be transported to a stilling and percolation basin also serving a residential area of approximately 42 acres. The water from the 42 acres now flows through a grass swale before entering the canal. The project design would accommodate the 42 acre flow and the .35 acres from the bridge. The water from the 42 acre plot and the bridge project flows into the Stockton Canal after receiving some water treatment in the transport process. The volume of the percolation basin is 620 cubic feet. The establishment of this percolation basin will not adversely affect the adjacent properties in the 42 acre tract by prohibiting the flow patterns from that property or sufficiently change the quality of stormwater treatment from the adjacent property to cause adverse impacts on receiving waters in the Stockton Canal. Runoff from the bridge to the island side of the proposed concrete structure would flow through a swale system for treatment before entering the Stockton Canal. The treatment afforded all runoff is by surface flow and vertical percolation. The alternative bridge structure, i.e., the wooden bridge, would span the Stockton Canal and not require filling either waterward or landward of the mean high water line. Unlike the concrete bridge, the deck surface is pervious. Consequently, water may be introduced directly into the canal from the deck surface. The stormwater runoff on the bridge approach on the mainland side would be collected and discharged through the existing grass swale and from there, into the canal. Drainage from the bridge surface and approach on the island side would be through a swale system and from there into the canal. The Stockton Canal is constituted of Class III waters within the meaning of Chapter 17, Florida Administrative Code. Consequently, the Respondent is required to give reasonable assurances that the project would not violate water quality criteria or standards related to Class III waters. In this instance, construction and utilization of the concrete bridge, with its attendant approaches, would not degrade the water below those standards, that is to say, the necessary reasonable assurances have been given that the short and long-term effects of the project will not result in violations of Class III water quality standards. The latest concrete modification allows for the removal and treatment of the stormwater effluent which flows from the bridge surface and approaches. No fill is to be placed in the waters of the state below the mean high water line. (The mean high water line was established in the course of the hearing through the testimony and the evidence presented.) Fill will be contained by sheet pile. Turbidity screens will be used while the construction is underway to confine turbidity problems in the placement of the bridge pilings. Siltation barriers are to be employed while removing the existing root overhang on the island side of the bridge to avoid the deposition of those materials in the waters of the state. The timber bridge allows for water to flow directly from the surface into the canal but the contaminants introduced into the canal would not exceed standards. According to Harvey C. Gray, Jr., State of Florida, Department of Transportation, an expert in chemical water quality analysis, the expected constituents from the stormwater runoff from the bridge decks either directly or indirectly introduced into the canal would not violate water quality criteria parameters. Nor would leaching from the wooden bridge pilings present a violation of water quality criteria. These opinions are accepted. A study mentioned by Harvey Gray has established that the contaminants from the deck surface are usually contained in the first half inch of rainfall and the treatment arrangements for stormwater runoff are designed to accommodate that first half inch. The source of pollution on the deck is vehicular traffic and vehicular fallout. Moreover the transport of the stormwater over the land surface attenuates the concentration of pollutants. Don Clay Bayley is Chief of the Environmental Services Division, City of Jacksonville. Testimony given by the witness Bayley, who has some experience in testing for leaching of contaminants from wood pilings, pointed out the toxicity of those materials. He acknowledges, however, that treatment substances can be used which are not toxic. The applicant should use these substances if the timber bridge is employed. Bayley alluded to studies done by the Department of Transportation for the Buckman Bridge, which is a bridge serving Interstate 95, related to the fact that violations of lead, zinc, and copper standards of water quality have been found in that area. These observations did not take into account an acceptable mixing zone where the contaminants are to be introduced into the St. Johns River under the bridge. More importantly, the Buckman Bridge is very different in terms of the amount of vehicle traffic, in that there are an extremely high number of vehicles using that bridge, as contrasted with the limited use of the subject bridge. Therefore, Bayley's concerns are not well- founded. Otherwise, the timber bridge offers the same quality of protection as the concrete bridge and reasonable assurances have been given that the short and long-term affects of the project will not violate water quality standards for Class III waters. Nonetheless, the higher quality of water treatment would be received in the concrete bridge alternative. In support of the application, sufficient water quality sampling has been done to establish reasonable assurances that water quality standards shall not be exceeded. Moreover, nutrient loading is not expected as a result of the bridge construction. In addition, witnesses Deuerling, Tyler and Craft, employees of the Department and experts in water quality analysis, do not believe water quality criteria will be exceeded by this construction, and their opinion is accepted. In summary, the necessary reasonable assurances have been given that water quality criteria related to Class III waters, as found in Rule 17-3.121, Florida Administrative Code, will not be exceeded and that the project will not promote undue nutrient loading as contemplated by Rule 17-3.011(11), Florida Administrative Code. Peter Hallock, project engineer, established in his testimony that either alternative in the bridge design would not adversely affect drainage related to adjoining properties on the landside of the bridge. The concerns expressed by Dr. Arlynn Quinton White, Jr., Department of Biology and Marine Science, Jacksonville University, of the possibility of stormwater impacts, with particular emphasis on hydrocarbon concentrations, are not accepted. The runoff is not found to be violative of water quality standards in the receiving waters. These findings take into account the expected maximum number of average daily trips, 460. Given the number of average daily trips, the stormwater contaminants, which are untreated, would not violate DER water quality standards. The number of average daily trips on the proposed bridge is much less than the 4,000 trips over the study bridge referenced by the witness Gray and generally discussed before. That study did not show violations of the criteria for Class III waters, which is the classification for the Stockton Canal. The location of the study, while not in Duval County, dealt with sufficiently similar circumstances to allow the acceptance of those findings. Testimony was presented by Dr. Barry Benedict, author of the aforementioned hydrographic study. His testimony concerned an analysis of the flow patterns at present and following the installation of the bridge. The testimony was based upon results of the initial investigation or study, found as Respondents' Exhibit No. 6 admitted into evidence and the update of April 18, 1983, found as Respondents' Exhibit No. 7 admitted into evidence. Dr. Benedict's analysis utilized a liberal estimate of the impact of the bridge on the canal system on the question of flow. His findings were to the effect that the bridge would cause minimal change in the flow velocity of the water and in sedimentation in the overall canal. He did not feel that the installation of the bridge would unduly hamper the flushing qualities in the canal or result in a flood hazard to adjacent properties. This was his opinion whether the concrete alternative or timber bridge were elected. Benedict felt that a maximum nine percent difference in flow would occur bringing the flushing time within the canal system from 3 hours and 30 minutes to approximately 3 hours and 45 minutes. This, in Benedict's mind, is not a substantial hydrographic alteration. In summary, Benedict felt that the installation of the bridge would have minimal impact in terms of hydrographics. Benedict's depiction of these matters is accepted as being correct. The Department of Environmental Regulation's hydrographic engineer and specialist in hydrodynamics and water quality analysis concurred with Dr. Benedict on the hydrographic effects of the installation of the bridge. Her concurrence is based upon a review of the Respondents' Exhibit No. 6. Ms. Sperling had also examined the site for the proposed bridge project and made independent calculations that the flow velocity would not be significantly influenced by the installation of the bridge. Ms. Sperling believes that a flushing time which is essentially one half tidal cycle or six hours is acceptable, and she believes that the flushing time in this project after the bridge installation will fall within three and a half to four hours. Sperling also indicated that she did not feel that the bridge project would have adverse effects on the water quality within the canal. The opinions of Sperling, as related herein, are accepted as factually correct. George Robert Register, III, who holds a bachelor's degree in biology and a master's degree in coastal and oceanographic engineering, gave testimony on the hydrographics within the Stockton Canal. Register's opinions were not based upon testing or calculations related to the project such as sediment analysis, studies of tides, or soil borings. He noted the gradual shallowing which has occurred within the canal over a period of years and expressed concern that the change in flow could result in a more rapid shallowing. He alluded to the observations of Frederick W. Brundick, III, a resident of the Stockton Canal, who has seen the shallowing occur over a 20-year period. Register also stated that he feels that the present situation in the Stockton Canal is similar in nature to a problem which occurred in another area of the Greater St. Johns River which is known as Mill Cove. In that instance, dramatic silting has taken place. Register contended that boat traffic helps to suspend the particles of soil and alleviate silting, an influence which will be diminished after bridge construction due to less traffic. Register indicated that the analysis of the hydrographics, which was done by Dr. Benedict, was insufficient and indicated that, in his opinion, a stability test should have been done related to the project area. The stability analysis pertains to whether the water system will continue in its present flow pattern or is on the brink of rapid shallowing. While the observations of Register and Brundick related to the shallowing of the canal system are accepted, Register's opinion that the present system will rapidly deteriorate into a more shallow configuration, as with the case with Mill Cove, is not accepted. Nor is Register's suggestion that a stability test was in order on this occasion found to be correct. The calculations by Dr. Benedict, confirmed by Sperling, are found to be the more accurate depiction of the effects of the installation of the bridge. The placement of the bridge is not expected to be an event which will imbalance the flow patterns in such a fashion that rapid siltation will occur. Based upon Department of Environmental Regulation reports, the types of sediments in the canal subject to water borne transportation are silty. They have low fall velocities, which would make them less likely to increase sedimentation in the canal system due to the installation of the bridge, when compared to other soil types. The sediment materials are very fine and not such that they would readily settle out due to minor reductions in the flow velocity, such as would occur with the construction of the bridge. Although the reduction in flow velocity within the canal system after the bridge build-out is not such that it would cause water quality violations or substantially impede the flow, there will be some increase in siltation. This change in sedimentation or siltation is recognized by the Respondent, in the person of its expert, Dr. Benedict. The fact of this increase in siltation would require channel maintenance within the canal, and no provision has been made in the application for channel maintenance. That maintenance is necessary to prohibit undue shallowing, especially at the location of the bridge. This siltation at the bridge will result based upon the placement of the pilings, which will slow the velocity of water, leading to attachment of marine organisms to the bridge pilings. Consequently, provision should be made for channel maintenance. Likewise, even though the Respondent hopes to eventually have a homeowner's association responsible for bridge maintenance, that issue of the development of the island was not considered in the course of this hearing, making it necessary for someone to maintain the constructed bridge and approaches prior to any future development. That provision had not been made and should be arranged for. Both the channel and bridge maintenance would be an appropriate responsibility for the applicant for permit. The necessity for the bridge and canal to be maintained by the applicant is not such that the Department, pursuant to Rule 17-4.11, Florida Administrative Code, should require proof of financial responsibility or posting of a bond. If the applicant is financially able to construct the bridge, it is determined that the applicant could be expected to be financially able to maintain the bridge and canal. Witnesses of the Petitioners, in particular, the witness Bayley, have expressed concern about the placement of fill material on Ortega Island, in that it is the belief of that witness that the placement of the fill would displace the muck layer which would then be forced into the canal. Witnesses White and Register supported Bayley's opinions reference the muck layer. There is, in fact, a muck underlay on the island, and the placement of the fill soil can be expected to force the transport of some of the muck underlayer. The amount of muck layer to be displaced is not certain; however, by placing the piling barrier at the edge of the canal the muck can be contained. The applicant has made provision for protection against the muck material where the pilings are proposed for installation. Nonetheless, it may be necessary to extend the length of pilings beyond the area of the bridge abutment and approach to the bridge on the island side, to contain this material, and the applicant should make any necessary modification to prohibit the introduction of the highly organic muck material which could cause problems with ph and dissolved oxygen content related to water quality standards. In summary, the applicant has given the necessary reasonable assurances that the muck material will not violate water quality standards in the water, subject to necessary adjustments in the piling design on the island side in the area of the bridge approaches to block the flow of the muck. On the related question of the overall stability of the island, the geomorphologic process evidence shows that the island is becoming more inundated with water. This is borne out by the observations of Mr. Brundick, a 20-year resident in the area of the island, and is more graphically described in the photographs which are Petitioners' Exhibit No. 2 admitted into evidence. His finding is also supported by the observations of Dr. White to the effect that certain vegetational species seen on the island indicated that increased island area was under water. The placement of the bridge approach fill was not shown to be a critical contributor to this condition. Notwithstanding the island's long-term physical change, there was no indication that this condition, per se, when considered in the context of the building of the bridge and the approaches, indicates violation of the permitting statutes or rules of the Department of Environmental Regulation. The development or the construction of the bridge requires the dredging of material in waters of the state. Per Section 253.123, Florida Statutes and Sections 17-4.29, Florida Administrative Code, the Respondent/Applicant needs to address the possible interference with conservation of fish, marine, and wildlife and other natural resources which the project may promote contrary to public interest. Respondent satisfactorily responds to those matters. The biological and ecological studies, which were done by the Department of Environmental Regulation, and reported in Respondents' Exhibits 8 and 9, indicate that the area in the Stockton Canal is not particularly productive in terms of its biological volume and diversity. There is very little litoral vegetation and submerged grasses are scarce. The most diverse area is in the proposed project site which formally was the location of a bridge. The remains of that bridge debris have promoted a more diversified biological community. To protect the species and habitat during and after construction, the applicant is using a full span bridge, which is in keeping with recommendations by various state and federal agencies. The testimony of the expert biologist Tim Deuerling of the Department of Environmental Regulation, was to the effect that the impacts of the project related to biological resources was minimal. Jeremy Craft, of the Department of Environmental Regulation, agrees with Deuerling and indicates that there will be no impact on the resources pertaining to fish, marine, and other natural resources. Moreover, both Deuerling and Craft felt that the placement of the bridge piling would grant an opportunity for increased biological diversity in the Stockton Canal. Jeremy Tyler also indicated that he was of the opinion that the bridge would not negatively impact fish, wildlife, and other natural resources premised upon the fact that no fill was being placed waterward of the mean high water line and no substantial changes in the hydrographics of the canal system. These opinions expressed by Deuerling, Craft, and Tyler are accepted as being correct. The installation of the bridge will not result in the destruction of oyster beds, clam beds, or marine productivity including destruction of marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and establishment of marine soils which could be used for producing plant growth useful for nursing or feeding grounds for marine life or interfere with the natural shoreline processes to an extent that is contrary to the public interest within the meaning of Subsection 253.123(2)(d) Florida Statutes. It was additionally established that the placement of the canal will not interfere with the endangered West Indian Manatee, the area of the canal having insufficient vegetation for the manatee to feed on. Any manatee passing through the area of the canal will not be hindered by the bridge's placement. Additionally, there may be some benefit to the placement of the bridge in that it would tend to slow the boat traffic, decreasing the possibility of injury to the manatee by boat propellers. This was established by testimony of the witness Deuerling. In summary, no showing was made that the project will adversely impact fish, marine, and other natural resources in the area to the extent that it is contrary to the public interest. Benedict and Sperling have established, through their opinion testimony, that the installation of the bridge would not have an adverse impact on the shoaling conditions which are occurring at the north and south entrances to the canal. This testimony is correct. The shoaling conditions will occur with or without the construction of the bridge. Moreover, as established through Benedict's testimony, during a flood stage condition, such as a flood tide five feet above mean high water, the bridge would make no notable contribution, in that it would cause a backup of water only in the range of two to three inches. The bridge, when installed, will reduce boat traffic. Nonetheless, at present, boats are not a primary factor in reducing the amount of siltation in the canal and a further reduction in the contribution which those boats make to reduction of siltation is inconsequential. Any positive contribution by boat traffic in reducing siltation is offset by the negative impact of that traffic on water quality. On the subject of hydrographic changes to be brought about by the installation of the bridge, there will be no substantial alteration or impediment to the flow of water in the Stockton Canal to an extent that it is contrary to the public interest. As briefly alluded to before, there will be some impacts upon navigation in the canal; however, those impacts do not reach the level of becoming a hazard to navigation or a serious impediment to navigation contrary to the public interest. At present, approximately 20 boats may use the canal in a weekend according to the testimony of Fred Brundick. The canal already has a "no wake" zone and the placement of the bridge will not tend to interfere with the speed of boat traffic through the canal. If anything, the placement of the bridge may assist in slowing down boat traffic within the canal for those individuals who tend to disregard the "no wake" zone. The shoaling, which has been spoken to in a prior paragraph, is most severe in the north end where minimum controlling depths of 3.7 feet mean low tide may be found as contrasted with 4.4 feet mean low tide at the south end. Therefore, southern access into the canal is easier for those persons who have residences on the canal and other persons who use the canal, when their boats have deep drafts. Smaller boats will be able to enter the canal from the north and south if the bridge is constructed, in view of the fact that the bridge affords an eight foot clearance. Those boats which would not be able to gain entrance into the canal after the construction of the bridge would be boats which require more than 4.4 feet of draft and greater than eight feet of vertical clearance. H. J. Skelton, a resident of the landside of the north end of the canal, testified in the course of the hearing and indicated that the placement of the bridge would limit the type and size of boat that he might wish to purchase in the future. At present, he does not own a boat or dock at his residence. Witness Brundick also established that he would be precluded from bringing one of his boats to his home because of the placement of the bridge, except at extremely high tide events. That boat is one which is infrequently moored at his home. Raymond Perry Harris, who lives on the canal, has difficulty bringing his boat through the north end at low tide, and he would be unable to utilize the southern entrance at low tide due to the 14 foot clearance necessary for the boat to go under obstacles such as the bridge. He brings this boat to the dock at his home approximately three to four times a month. Although it has been demonstrated that there will be some hindrance to local residents and others due to the placement of the bridge, the only hazard presented by the placement of the bridge concerns boat operators who are not attentive and water-skiers. This latter category of canal users would be utilizing the canal contrary to the "no wake zone, even without the placement of the bridge. Thus, water-skiers and careless boat operators are not the categories of individuals who use the canal and by doing so should cause the rejection of this permit request. On balance, the proposed bridge is not a hazard or impediment to navigation and its restrictions to the utilization of the canal are not contrary to the public interest. The minimal restrictions on navigation are within acceptable limits. The project, in its design, will not require the placement of fill below the line of mean high water. Determination of the mean high water line was made by a registered surveyor and that determination may be found as Respondents' Exhibit No. 5 admitted into evidence. Consequently, no local approval was sought pursuant to Section 253.1245, Florida Statutes (1982). There is no extension to land by the process of the construction of this project. However, there is an area of overhanging vegetation with an underlying undulation/indentation, which by its design causes the vegetation to be slightly above the water at low tide and under water at high tide, with the indentation being configured in a fashion which places the line of mean high water further landward than depicted by the applicant. The locale of these features is at the construction site on the island side. This phenomenon has occurred due to the changes related to erosion. The indentation or cave eroded because of tidal influences and boat traffic, leaving the vegetation mass. The overhang material would be removed, and this process does not involve the extension of land from a point above the line of mean high water into waters of the state. A siltation barrier would be used while this overhang is being cleared, and the sheet piling would be installed at or above the mean high water line, and associated work related to the installation of the pile would be landward of the line of mean high water. The applicant's plans do not show that the piling barrier or bulkhead will follow the configuration of that phenomenon. At present, there is a straight line bulkhead. Nonetheless, the applicant could vary the configuration and prevent the placement of fill in the water. To accommodate this problem from an engineering point of view, the bridge can be lengthened to assure that the bridge spans the entire waterway at the point of the phenomenon and thereby prevent any placement of fill waterward of the line of mean highwater. In addition, the bulkhead can be placed so that it follows the configuration of the undulation. In summary, treatment of the overhang problem will not require the extension of land into waters of the state by the placement of fill below the mean high water line as described in Section 253.1245, Florida Statutes (1982) . Moreover, the removal of the material in the overhang and the placement of the bulkhead to approximate the configuration of the cave and expansion of the bridge span on the island side are not actions which would violate water quality standards of the Department or are contrary to public interest related to conservation of fish, marine wildlife, or other natural resources. Neither will this tend to adversely impact or substantially alter or impede the flow of navigable waters contrary to public interest nor present a navigational hazard or serious impediment to navigation contrary to public interest. There is some indication of concern on the topic of decreased property values for residents on the landside on the proposed bridge. Likewise, testimony was given concerning the opinion of one homeowner that additional traffic would be hazardous to persons living in the present neighborhood adjacent to the canal. Additionally Phillip Fred Baumgardner is a member of the general public and gave testimony to the effect that the installation of the bridge would prohibit certain commercial boats from being able to work the canal. Owen Ganzel, who fishes in the area, expressed concern that the bridge installation would cause a decline in fish population; however, he indicated that lately, the Ortega Island area has improved These concerns are not substantial enough to cause the rejection of this permit application based upon public-interest concerns.
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of November, 2012.
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
Findings Of Fact A draftsman named Ward approached respondent with plans which Mr. Ward told respondent he had been given by one W. J. "Jack" Harlan. Mr. Ward also told respondent that Mr. Harlan had said that the plans were for a standard steel "pre-engineered" Mitchel Building, which Mr. Harlan proposed to construct for D & D Machine Specialties, Inc. in Fort Myers, as an annex to an existing building. Respondent was given to understand by Mr. Ward that Mr. Harlan wanted respondent "to prepare a plot plan and foundation plan, [and a plan for an] electrical riser and . . . [to] copy . . . some details furnished by" Mr. Harlan. Respondent agreed to undertake the project. In accordance with respondent's instructions, Mr. Ward drafted four sheets of drawings. Respondent "checked [the drawings] . . . , made some minor changes and corrections and . . . signed them." (T65) These drawings came in as petitioner's exhibit No. l. The first of the four sheets contains a schematic riser diagram, an electrical floor plan and a plot plan. On this sheet is written "PRE-ENGINEERED METAL BUILDING BY MITCHEL." The second sheet contains a foundation plan and detailed drawings of columns. On the second sheet is written "SPECIFICATIONS COPIED FROM ENGR. DATA BOOK, AS PUBLISHED BY MITCHEL METAL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." The third sheet contains floor plans and drawings of the north, east, south and west elevations of the proposed structure. The fourth sheet contains a roof framing plan, a stress diagram, and wall and other structural details. On this sheet is written "SPECIFICATIONS COPIED FROM COMPUTER [sic] PRINT OUT, & ENGR. DATA BOOK, BY MITCHEL STEEL BUILDINGS, AS APPROVED BY STEEL JOIST INSTITUTE." Respondent's seal and signature appear on each of the four sheets. The first sheet is dated February 23, 1977. Each of the other sheets is dated February 14, 1977. Mr. Harlan submitted all four sheets of petitioner's exhibit No. 1 to Fort Myers' Building and Zoning Department as part of his application for a building permit. Mr. Alfred J. Heinman, Director of Fort Myers' Building and Zoning Department, and others in the Building and Zoning Department who reviewed the drawings, had reservations about the stability and strength of rails proposed along either side of the planned structure to bear the weight of a movable overhead crane. Accordingly, the Building and Zoning Department denied Mr. Harlan's application for a building permit. Mr. Harlan never told respondent that his permit application had been denied. Instead, he engaged Jorge Zorilla, a professional civil engineer whose specialty is structural design engineering, to remedy the deficiencies in the drawings respondent had done. In examining petitioner's exhibit No. 1, Mr. Zorilla concluded that, if the building had been constructed in accordance with respondent's drawings, trying to lift with the overhead crane in an eccentric position, or even a strong wind, could have caused its collapse. Specifically, the connections between roof members and columns proposed in petitioner's exhibit No. 1 were not strong enough to resist lateral forces on the building; there was inadequate provision for the support of the overhead crane; and there was no bracing system between the columns to resist winds in an easterly or westerly direction. In Mr. Zorilla's opinion, respondent gave no consideration to forces that would have been exerted on the structure by the wind and also failed to consider the consequences of an eccentric crane load. As originally drawn by respondent, the plans did not meet the requirements of the Southern Building Code. Before redrawing sheet four of petitioners exhibit No. 1, Mr. Zorilla asked Mr. Harlan for any information he had "from the Mitchell Steel Building people." (T18) Mr. Harlan answered that he had none; that the proposed building was not a standard model; and that he had collected building materials from various sources. As reflected by petitioner's exhibits Nos. 3 and 4, Mr. Zorilla made several changes in sheet four of petitioner's exhibit No. 1, including doubling the number of joists in the area where the crane load would exist; increasing from 4" to 12" the height of plates welded to columns to support the crane girders; specifying that 6" x 1/4" plates be welded to the bottoms of the joists near the points of connection with columns; modifying plans for the corner columns; specifying that sway bars be included in two bays on both of the longer walls; and specifying larger angles for bridging. Mr. Ward, whom Mr. Harlan had engaged for the purpose, drafted the changes specified by Mr. Zorilla. When Mr. Zorilla saw Mr. Ward's first draft, he asked him to make certain changes. After Mr. Ward had accomplished the changes, Mr. Zorilla signed and sealed the revised sheet four. On the basis of the plans as revised, Fort Myers' Building and Zoning Department granted Mr. Harlan's application for a building permit. Respondent testified that he was not registered as a structural engineer, "that it was a little over . . [his] head," (T56) and that he had never intended that the plans he signed and sealed should be used by themselves. Respondent testified without contradiction that it was customary, in the case of "pre-engineered" buildings, for the structural engineering to be done by one engineer, while other engineers prepared electrical, air conditioning and other plans for the same structure. The foregoing findings of fact should be read in conjuction with the statement required by Stuckey' s of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspended respondent's certificate of registration for sixty (60) days. DONE and ENTERED this 5th day of May, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Respondent's proposed findings of fact have been rejected as unsupported by the evidence. Petitioner did present evidence "as to its allegation" in the first specification of the administrative complaint. Taken as a whole, the evidence did establish that respondent knew or should have known that he had taken on a structural engineering task. Petitioner's proposed findings of fact have generally been adopted, in substance, insofar as relevant, except that the evidence did not establish whether or not the plans drawn at respondent's direction resembled "a Mitchell pre-engineer[ed] building"; and the plates specified by Mr. Zorilla were six inches by one quarter inch. COPIES FURNISHED: Ford L. Thompson, Esquire Suite 701, Lewis State Bank Building Tallahassee, Florida 32302 Stephen W. Buckley, Esquire Corner Main and Broadway Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS FLORIDA STATE BOARD OF PROFESSIONAL ENGINEERS AND LAND SURVEYORS OF THE DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, a State agency, Complainant, vs. DOAH CASE NO. 77-2224 CLARENCE L. KIMBALL, Registrant. /
