The Issue Whether or not Respondents Moeller are entitled to the issuance of a dredge and fill permit for the widening of an existing dock two feet wide so as to create a dock four feet wide. BACKGROUND AND PROCEDURE The burden in this cause is upon the party seeking the permit (Respondents Moellers) to show they have provided reasonable assurances that the proposed project (1) will not cause water quality standards to be violated and (2) will not be contrary to the public interest. For projects that are within or will significantly degrade an Outstanding Florida water, the applicant must show that the project is "clearly in the public interest." See, Section 403.918, Florida Statutes. Respondents Moellers' motion to dismiss for lack of standing was denied by order of September 30, 1987, and was raised again in their post-hearing proposals. It is again denied within the following Conclusions of Law. Respondents Moeller (hereafter sometimes referred to as "applicants") presented the oral testimony of Dr. Arthur Weiner, who was qualified and accepted as an expert in marine biology and ecology, water quality, and the physiological ecology of marine plants, and the oral testimony of Julia Moeller. They had admitted in evidence exhibits 1, 1A, 2, 4, 6, 9(a)-(k), 11, 12, 13A, 13B, 14A, 14B, 15A, 15B, and 16(a)-(c). Respondent Department of Environmental Regulation (DER), which supports the Moellers' permit application, presented the oral testimony of David Bishof, who was qualified and accepted as an expert in water quality, marine biology, and the ecological impact of dredge and fill projects, and had admitted one exhibit. Petitioners Williams and Causey, who oppose the permit application, (hereafter sometimes referred to as protestants"), presented the oral testimony of Dr. Brian LaPointe, who was qualified and accepted as an expert in marine ecology, water quality and the physiological ecology of marine plants, and of James and Regina Williams. Five exhibits were submitted at hearing. A deposition of Petitioner Charles W. Causey, (P-6), was objected to by Respondents. Provision was made for after-filed memoranda of law to argue the objection; the failure of Respondent to file their memoranda is deemed waiver of their objection, and P-6 has been admitted in evidence and considered. Official recognition was taken of Section 27F-8.03, now renumbered and reassigned to Chapter 28, and of Chapters 18-2 and 17-3, and Rule 17-4.242, Florida Administrative Code. All parties have submitted their respective proposed findings of fact and conclusions of law, the findings of fact of which have been specifically ruled upon in the appendix of this recommended order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Applicants Charles and Julia Moeller own property in Islamorada, Monroe County, Florida, located on Florida Bay, which is currently designated an "Outstanding Florida Water." John E. Williams and Regina Williams own and reside upon property abutting the northern boundary of the applicants' property. Mr. Causey's property abuts the northern boundary of the Williams' parcel. Each has substantial frontage on Florida Bay. The Williams and Mr. Causey have used and continue to use the waters adjacent to their residences, the project site, and Florida Bay for fishing, swimming, boating, and other recreational activities. The permit application at issue in the present proceeding is to widen an existing dock by two feet so as to increase it to approximately 996 square feet. No dredging or filling will be necessary to add the plankings to the existing dock. The proposed project can in no way further affect the navigability of Florida Bay, or cause harmful erosion or shoaling. There will be no archeological impact. The permit sought in this application seeks to modify the dock already existing at the site, which, because it is less than 500 square feet, is currently exempt from DER permitting regulations. The entire prior history of the existing dock is summarized in the November 5, 1986, Final Order in the consolidated cases of Williams et al. v. Moeller et al., DOAH Case Nos. 86-1095 and 86-1096, which concerned disqualification of an intervening consent order and which is discussed in the following Conclusions of Law. The Moellers set out in 1984 to construct a dock of different dimensions and configurations, and in 1984 DER denied by final order a permit application for an L-shaped dock 90 feet by 5 feet and 170 feet by 5 feet or approximately 1300 square feet with eleven boat slips. Then, in January 1985, the Moellers applied to DER for a permit to build a dock four feet wide, covering an over-water surface of 996 square feet with eight boat slips, and the application gas returned bearing the stamp "exempt" across the front of it. Before the 996 square foot dock could be constructed, the approval of the Trustees of the Internal Improvement Trust Fund was required. The Trustees granted approval, conditioned upon the Moellers granting a conservation easement prohibiting any other docking structures being built upon their shoreline. The conservation easement is contingent upon the Moellers' acquisition of all other authorizations necessary to complete the 996 square foot dock. Before the Moellers could begin construction of the proposed 996 square foot dock, Florida Bay, within which the dock would be placed, was designated as an "Outstanding Florida Water." Upon designation, docks greater than 500 square feet were no longer exempt from DER permitting requirements. The Moellers became aware of the change by way of a letter from DER's representative, David Bishof, which they received shortly after construction had begun. Since some of the pilings were already in place, the Moellers proceeded to construct a dock of exempt dimensions, installing all pilings and railings, but stopping construction when the over-water surface area of the decking was 500 square feet. In so doing, the Moellers made a conscious decision of creating the length they desired in their second permit application but limiting its width. In so doing, they rejected the options of either reducing the length of the dock or applying for a permit to construct a dock of the originally intended length with a width of four feet. The final construction in place, as of the date of formal hearing in this proceeding, can be described as a dog- legged finger pier with a railing on one side. The planking extends to a width of two feet and there is a space of approximately two feet between the edge of the planking and the railing which runs along the right (north and then west) side of the dock. As currently configured, the existing dock is 2 feet wide and extends into the Bay perpendicular from the shoreline for 179 feet, at which point it turns south, extending another 79 feet, roughly parallel to the shoreline. This existing dock has a total over-water surface area of 500 square feet and is thus exempt from DER permitting regulations. The dock as constructed and now in place complies with all DER rules, regulations, and policies and is being currently utilized by the applicants and others; however, the dock requires that those who walk thereon move single file and presents minimal safety problems associated with its narrow width, particularly with regard to handicapped users and people carrying coolers, fishing gear, and other materials associated with recreational fishing, boating, and swimming. Mrs. Moeller's mother, confined to a wheelchair, is not able to use the existing dock at all. On December 4, 1986, the Moellers applied a third time to DER, this time for a permit to expand their dock from 2 to 4 feet, thereby doubling the planked area of the dock. One of the grounds alleged as supporting the application for extension is the hazardous nature of the dock as presently configured. DER responded with an Intent to Issue the above requested permit, upon compliance with several conditions. These several conditions require: prohibition of liveaboards, fueling facilities, major boat and motor maintenance and hull scraping or painting. Petitioners Williams and Causey objected, and this proceeding followed. The addition of 2 feet of planking for the entire width of the dock will not increase the number of boat slips as now existing. Widening the dock should make it more accessible to people, particularly the handicapped, and will eliminate the minimal hazards now existing. It may also be inferred that widening the dock will enhance the Moellers' opportunity to develop the upland as a condominium community which they have expressed the intent to do. The only certain environmental impact associated with the widening of the dock alone, that is, the only environmental impact not already existing as a product of the existing two foot wide dock, is the extra two feet of shading of the grassbeds (Thalassia testudium) which lie directly beneath the dock. Such shading of Thalassia or "turtle grass" beds would tend to cause a reduction in their photosynthetic activity. It is by the process of photosynthesis that these grasses contribute dissolved oxygen, a crucial element for a healthy marine environment. It may also be reasonably inferred that some sporadic shading will occur as a result of increased dockage of boats, but absent an increase in the current number of boat slips, this sporadic shading cannot be automatically attributed to granting of this permit application as opposed to the existence of the dock now in place, and the sporadic shading associated with use of the eight boatslips, is greatly reduced by the Moellers' current voluntary restriction against docking of liveaboards, and, if the permit is granted as proposed, the permit restriction against liveboards. The particular Thalassia beds underneath the Moellers' dock are currently in a relatively pristine condition and are producing large amounts of oxygen in spite of the fact that the dock as presently configured has been in place for some time. While the additional two feet of planking will somewhat reduce the amount of light which reaches the grassbeds with an attendant reduction in the dissolved oxygen levels at the site attributable to photosynthesis, this effect will be felt in a limited and finite area only and furthermore is not expected to drop dissolved oxygen levels below 5 milligrams per liter which is the applicable DER standard. Protestants' expert, Dr. Brian LaPointe, conceded that any adverse impact of the widened dock would be localized. He presented no figures for total biomass. The control points chosen by LaPointe were 100 feet away from existing docking facilities, and exhibited no measurable impacts on the existing docking facilities. To the extent there is contrary evidence in the record, it amounts to speculative projections based upon what quantitative measurements might have resulted if they had been taken at a different time of the year from those actually taken by Dr. LaPointe, or observations skewed by hurricane after-effects, or is refuted by evidence of the interaction between plant adaptation to degrees of shade, sun movement, and the height of the existing and proposed planking, and by the presence of at least minimal tidal wind and wind activity. Also, a number of factors stand to mitigate any adverse dissolved oxygen impact. These factors include the high amount of dissolved oxygen currently being produced at the site, the fact that the shadow of the dock moves with the passage of the sun and the seasons of the year, and the fact that seagrasses can adapt to certain degrees of shading. Dr. LaPointe compared, through quantitative analysis, the project area with two other areas similar in physiology but with greater marina usage than the Moellers' existing 2 foot wide dock or what usage might be reasonably expected from no increase in the number of boat slips were the permit granted contingent upon the agreed limitations to prohibit liveaboards and boat maintenance. Dr. Weiner testified as to several distinctions between the project site and the two sites used for comparison by Dr. LaPointe, such as fish house activity including excessive mineral increases from bird droppings, and the presence of boat maintenance. Due to significant differences between the survey sites chosen by Dr. LaPointe and the project site, his opinion that the cumulative environmental consequences of the proposed dock expansion would be the eventual deterioration or destruction of the seagrass bed resulting in a degradation of water quality through nutrient enrichment and reduction of dissolved oxygen and some nonspecific impact on the fish population, cannot be accepted. While the use of docking structures often is associated with heightened nutrient levels in surrounding waters, the site of the Moellers' dock does not now exhibit elevated nutrient levels and the additional two feet of planking will not increase nutrient loading. Although each dock is different and the Moellers' existing dock is of a unique configuration, docks of similar size do not tend to produce violations of the applicable dissolved oxygen standard. The possibility of elevated nutrient levels at the site is greatly lessened because docking of liveaboard boats and presence of fueling facilities and boat maintenance, all common sources of nutrients at dock sites, are currently prohibited by the Moellers. Provided this prohibition continues through permit restrictions, the elevation of the nutrient level will not occur or will be satisfactorily minimal. Without a permit being issued, DER would not have any mechanism to restrict the operation of an exempt dock. In contrast, the agency has proposed, as part of the requested permit, and the Moellers have agreed, to prohibit liveaboards, fueling facilities, and boat and motor maintenance and hull scraping or painting at their dock. Similarly, the granting by the Moellers of the conservation easement to the Trustees of the Internal Improvement Fund negates the possibility that this project could have an adverse affect on water quality or marine resources, because the easement prohibits any further docking facilities from being built along the Moellers' shoreline, thereby eliminating the cumulative impact of such additional docks. Permit issuance for the widening of the dock would make the conservation easement effective, and would thereby preclude the construction of other exempt docks. The effects of one centralized 996 square foot dock are expected to be much less than those which would be associated with two to four 500 square foot docks (2000 square feet maximum) of over-surface planking. In considering the various statutory factors relating to public interest, the agency's expert, David Bishof, testified that even if the proposed additional planking may cause a slight reduction in the essence of the flora of the area and photosynthesis, this effect would be more than offset by the elimination of the possibility of having multiple docks at the site. Absent activation of the conservation easement, or some externally limiting factor, it would be possible for the Moellers to construct one dock of 500 square feet every 65 feet along their single parcel, 280-foot shoreline for a total of 3 or 4 docks, without having to obtain a DER dredge and fill permit, since such small docks are exempt from such permitting requirements. While it is imaginative to suppose any one owner would want four such docks, given the possibilities for development, it is not entirely speculative, given Bishof's evidence as a whole, that two or more such docks might be added. Bishof recommended issuing the permit based on his opinion that the conservation easement and permit restrictions prohibiting liveaboards, boat and motor maintenance, and hull painting and scraping would be sufficient mitigation of any negative environmental factors. In so doing, Bishof admittedly did not take into consideration standards or requirements of the Department of Natural Resources or the Army Corps of Engineers which might restrict the construction of an additional four docks under 500 feet, but neither was evidence presented at formal hearing to show that such standards actually present any real and present impediment to one or more such constructions. Moreover, those issues between the Moellers and other agencies cannot be resolved within this proceeding as framed between these parties. Although Petitioners anticipate pollution from increased nutrients caused by greater marina activity, the anticipation expressed by the lay witnesses, Mr. and Mrs. Williams and Mr. Causey, is largely of the kind "futurists" make based on general observations that more people in any area automatically create more activity, resulting in water and noise pollution. The viewpoint is not compelling as evidence given the overall circumstances of this case and in light of the specific rule and statutory standards to be applied. Mr. and Mrs. Williams and Mr. Causey also object to the dock construction as proposed because they anticipate increased danger to swimmers, a reduction in the value of their property, and a loss of fish life as a result of increased dock activity. The foregoing concerns are purely speculative and are not supported by competent substantial evidence. In Mrs. Williams' case, she objects to obstruction of her "view." Although it was clearly established that the view from the Williams' home will be minimally affected by the two feet of plank width increase, an unencumbered horizon is not an environmentally protected right, and the largest part of the Moellers' dock is already in place across the protestants' "view" anyway. No measurable impact attributable to the addition of two feet of planking at the Moellers' dock is expected in front of the Causey or Williams properties.
Recommendation Therefore, upon the foregoing findings of fact and conclusions of law, it is recommended that DER enter a final order granting Respondents Charles and Julia Moeller dredge and fill permit number 44-128054-5 pursuant to the notice of intent to issue dated July 16, 1987, and the several restrictions therein. DONE and RECOMMENDED this 13th day of June 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June 1988.
Findings Of Fact Respondent/applicant, The Yachting Arcade (applicant), initiated this matter when it filed an amended application with respondent, Department of Environmental Regulation (DER), on April 27, 1984, seeking a permit authorizing the construction of a docking facility on the eastern shore of Bethel Creek in the City of Vero Beach, Florida.1 Specifically, applicant wished to construct a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline. The access docks would vary in size from thirteen to sixteen feet in length and from four to ten feet in width. The dock will be situated in front of a two-story commercial structure and parking lot on 1.14 acres owned by applicant which lies between Highway A-1-A and Bethel Creek. That structure will house a restaurant and other retail establishments. A city permit for the dock was previously issued on November 17, 1983, and remains in effect at this time. According to the parties, permit approval is also required from the Department of Natural Resources (DNR). However, DNR is awaiting action by DER before issuing or denying a permit. Bethel Creek is a relatively small navigable U-shaped dead-end canal connected to the Intracoastal Waterway in the Indian River in Indian River County, Florida. It is classified as a Class III water of the State. Because of continued development along the Creek, and poor flushing characteristics, the water has gradually deteriorated over the years. Most of its shoreline is bulkheaded in the vicinity of the proposed project, and it has a depth of around fifteen to twenty feet. The width of the Creek at the site of the project ranges from 120 to 195 feet and represents the most narrow part of the canal. The project is approximately one to two-tenths of a mile from the dead-end of the canal, and less than a half a mile from the opening at Indian River. In addition to applicant's commercial development, there are a number of single family residences on the Creek, a large condominium known as the Riverwalk Condominium, and eight townhouses at the deadend of the Creek. Other development may also exist but was not disclosed at hearing. There are a number of existing private docks with boats on the Creek including a four-dock marina at the end of the canal. Petitioner, Riverwalk Condominium Association, Inc., is an association of condominium owners who reside within 500 feet of the proposed activity. Under the proposal, applicant intends to limit the docking facilities to the private use of The Yachting Arcade." There will be no fuel or maintenance service for boats, and sewage disposal facilities and live-aboards will be prohibited. Shoreline improvement is to be accomplished by excavating an area landward of the dock, backfilling the area with sand and rubble, placing filter fabric over the backfill, laying sand and gravel over the fabric and revegetating the excavated/backfilled area with cordgrass and red mangroves. The theoretical capacity of the docking facility will depend on the size of the boats, but it will allow docking by up to twelve to fifteen boats of the fifty foot category at one time, or up to thirty-six smaller boats simultaneously. At the insistence of DER, the boats will be moored parallel to the Creek in an effort to not impede navigation. After receiving the original and amended applications, DER personnel made three on-site inspections of the property. These were conducted in January and May, 1984 and May,|1985. Although no water quality testing was performed, the Department found the Creek to be a viable habitat for various game and nongame species, including mullet, sheepshead, tarpon, snapper, manatees, great blue herons and egrets. The property along the shoreline was comprised of Australian pines, pepper trees and railroad vines until they were removed in June, 1985 by applicant. There has been severe erosion along the water front but this will diminish through revegetation and excavation of the bank. The construction of the dock will create only minor, short-term turbidity. The quality of the water within the Creek is now poor, but a vegetated shoreline, including mangroves, will assist in cleansing the water and improving its quality. Therefore, applicant has given reasonable assurances that the proposed project will not violate established water quality standards, or constitute a threat to marine life, wildlife or natural resources. According to agency rule an applicant must demonstrate that "the proposed project will not create a navigational hazard, or a serious impediment to navigation. . ." in the affected waters. Even though the dock will be built at the most narrow part of the creek, and may have as many as thirty-six boats moored at any one time, the agency expert concluded that no impediment to navigation would occur.2 However, testimony by residents on the Creek indicate that the actual navigable part of the stream is much smaller, and that boats are frequently "beached" because of the shallow nature of the waters. Since applicant will simultaneously allow as many as fifteen boats in the fifty-foot category, or thirty-six of a smaller variety, to traverse the Creek, there will be a serious impediment to navigation on the narrow navigable part of the Creek. Moreover, it will create a navigational hazard. A restriction on the number of boats to use applicant's dock at one time is not practical, and even DER omitted such a condition because of its inability to enforce this provision. Therefore, the criteria for issuance of a permit have not been met.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of The Yachting Arcade for a permit to construct a shoreline dock on Bethel Creek in Indian River County, Florida be DENIED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985.
Findings Of Fact Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property") The Property has a shore length of 68.5 feet on Crescent Lake. Crescent Lake is a "water of the state" as defined in Section 403.031, F.S. The agency, now DEP, is the state agency charged with environmental concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake. Mr. Carter's westerly neighbor also has a shorter dock going into the lake. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value. The Hagemans initially filed a complaint with the DEP in regard to the dock. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes. The consent order provides, in pertinent part, that Mr. Carter will (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about 100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state". A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C. 3/ Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows: 2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof * * * 5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent. * * * 12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights. DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Is Petitioner entitled to an after-the-fact coastal construction control line (CCCL) permit for existing construction seaward of the CCCL in Gulf County, Florida? If not, should the existing construction be removed? See Section 161.053, Florida Statutes; and Chapter 62B-33, Florida Administrative Code.
Findings Of Fact Respondent exercises permitting authority for construction seaward of the CCCL under terms set forth in Chapter 161, Florida Statutes, and Chapter 62B-33, Florida Administrative Code. The CCCL is a regulatory line established in each coastal Florida county which demarks the landward extent of storm erosion for a major 100-year storm. The CCCL has been established for Gulf County, Florida. Petitioner owns property in Gulf County, Florida, at 2560 Indian Pass Road, Port St. Joe, Florida. The property includes a beach house and dock. The dock is seaward of the CCCL. The dock is subject to Respondent's permit requirements under Chapter 161, Florida Statutes, and Chapter 62B-33, Florida Administrative Code. Petitioner's property at that address is located on the eastern end of Indian Peninsula, adjacent to Indian Pass across from St. Vincent Island. Petitioner's Gulf County address is not his permanent residence. Petitioner's permanent residence is in Washington County, Florida. Petitioner seeks an after-the-fact permit for construction of a dock seaward of the CCCL. Petitioner's dock contains six pilings. Three pilings are perpendicular to the shoreline. Three pilings are parallel to the shoreline. A narrow catwalk traverses the pilings. This forms an "L" shaped dock. The two spans in the dock are approximately 25 feet in length each. The pilings that support the dock are approximately 16 inches in diameter. The width of the catwalk is approximately one and one-half feet. The catwalk is about one and one-half feet above mean high water. The dock design allows for the planks in the catwalk to be removed in several minutes. The CCCL bisects Petitioner's property in a manner that places the dock more than 200 feet seaward of the CCCL. The area in the vicinity of the dock is subject to storm waves and storm tides from the open ocean, the Gulf of Mexico. The area in question is not sheltered from the influences of the storm waves and storm tides. The property here is also proximate to an inlet at Indian Pass. As such, the processes involved with tides, currents, and wave effects off of the shoals around the inlet have influence on the property. The processes are more dynamic than would be found on an open coast shoreline not adjacent to an inlet. The dock is in the surf zone of the beach-dune system. That is the area where breaking waves occur. It is the most dynamic area in the coastal profile. At one time there were seven pilings that had been installed by the Petitioner at the location. One piling has been dislodged and removed by events associated with waves and tides, possibly during a storm. If pilings were dislodged during a storm, a potential risk of damage to uplands through the creation of a wind or waterborne missile existed. Storms which took place around the time that the piling was removed were Hurricanes Georges and Earl. Georges came ashore in Alabama near Perdido Key along the Alabama-Florida state line. It was a Category II storm when it made landfall, considered a severe storm. Earl came ashore near Mexico Beach close by the location of Petitioner's property. While Earl had been a strong storm, it decreased in strength, and at the time it made landfall was a minimal hurricane, a Category I. Earl and Georges are considered routine hurricanes in comparison to a hurricane such as Opal, which came ashore in Pensacola, Florida, 100 miles away from Petitioner's property. Opal was a Category IV storm, stronger in its influence than Earl and Georges. Hurricanes of greater force than Earl and Georges can be more destructive to Petitioner's remaining dock than has been the case with the removal of the seventh piling. In the event of a Category V hurricane it is very likely that the present dock pilings would be dislodged. To protect the catwalk against destruction from storm surge, it would need to be much higher in elevation from the mean sea level than is contemplated by its design. In the area of Petitioner's property, the mean high water line is approximately one and one-half feet above mean sea level. The decking in the dock would need to be constructed a minimum of 10 feet above mean sea level to avoid a storm surge from a twenty-year storm. The requirement for a 10-foot elevation is in relation to ocean or fishing piers. The dock in question is an ocean or fishing pier. Storm surge associated with hurricane Georges, in the vicinity of Petitioner's property, was on the order of a ten-year storm. Hurricane Earl, in the vicinity of Petitioner's property, was in the nature of a ten to twenty-year storm event. The Petitioner's pilings and the catwalk, if subjected to a ten or twenty-year storm event, would fail and become wind driven and waterborne missiles. In the event that the structural members of the dock failed in a storm event and were generated as wind or waterborne missiles, they could damage the upland dwellings during the storm event. The portability of the structural members of the catwalk does not relieve Petitioner of the obligation to design the overall structure in a manner to minimize the potential for generation of wind or waterborne debris. From Respondent's policy perception portability of the catwalk does not overcome the concern about the catwalk as part of the basic dock design and the risk that all features within the dock design are susceptible to becoming wind or waterborne in a storm event when considered as an entire structure. Petitioner in his testimony indicated that his normal residence is about two hours from the dock location by automobile. Petitioner recognizes that in the event of an evacuation from the coastal area where his dock is found, in an anticipation of a storm, Petitioner might not have access to remove the catwalk. Petitioner's dock is a major structure with potential to create an adverse impact to the coastal system, in particular upland structures if removed by the forces of nature. Petitioner's dock is not a typical ocean mooring, such as a floating buoy. The dock is not designed for expendability. It is designed to be permanent. By its permanency it presents the risk of an adverse impact to the coastal system, to include upland properties. The perpendicular pilings in the project are more shallow in their anchoring when compared to the parallel pilings. Both sets of pilings create concern that they will become wind or waterborne missiles. The parallel pilings are at the seaward limits of the structure. They are subject to being scoured and removed by a major storm event, no less so than the perpendicular pilings in their shallow placement. In addition to the scouring action at the base of the pilings, removing the material that forms the embedment for the pilings, wave action, and hydrodynamic forces exert an adverse influence on the pilings. Unlike dune walkovers, the dock located in the surf zone is in the area where waves break and dissipate energy. That process typically transpires before the waves reach the dunes themselves where the dune walkovers are found. The dune area is less dynamic in this sense. In addition to dissipation of energy in the surf zone, energy from wave action is dissipated across the beach before reaching the upland location where the dune walkovers are found. It would take a more severe storm, which has a lesser probability of occurring, before a dune walkover would be at risk of deteriorating and becoming part of debris that poses a threat to upland structures. The perpendicular piling nearest the beach presents an interference with lateral beach access. Petitioner in presenting his application for an after- the-fact permit has not refuted Respondent's concerns about the potential for the pilings and deck to become displaced in a storm event placing the uplands at risk. Petitioner has not countered Respondent's proof presented through Robert M. Brantly, Jr., P.E. Mr. Brantly in his testimony offered the opinion that the structural members of the dock would be dislodged in a storm event and present a risk of becoming wind and waterborne missiles presenting the potential for destruction to upland property in the area. That opinion is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which denies an after-the-fact permit for Petitioner's dock and calls for the removal of that dock upon a date established in the final order. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 30th day of July, 1999. COPIES FURNISHED: J. Howard Lovett 3131 Lovett Road Post Office Box 225 Chipley, Florida 32428 Ricardo Muratti, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact D.S.I. Forms, Inc. is a for-profit corporation with facilities in Palatka, Florida. It is the owner of a river- front house known as the "DSI Lodge," which is the location of the boat dock at issue here. The DSI Lodge has an existing boat dock similar to those of other waterfront homes in the area along this section of St. Johns River, which is a Class III Florida Water.1 The area is predominantly single family residential, but is not so restricted by zoning ordinance. The DSI Lodge is used as a weekend and holiday retreat by the owner of D.S.I. Forms, Inc., who resides in Atlanta, Georgia, and by his business and personal guests. Although the DSI Lodge has a business character, there is no charge to guests for using lodge or dock facilities. The proposed DSI dock extension would add a two-boat covered slip measuring 20 by 22 feet to the end of the existing dock. Since DSI only seeks mooring facilities for one additional boat,2 it has agreed with the Department of Natural Resources (DNR) to remove its inside boat slip. Although DNR was not a party to this proceeding, the Applicant's stated intent to remove a portion of the existing dock should be reflected in any permit issued by DER. The existing dock is approximately 700 square feet in surface area. With the application as now framed, the total surface area would exceed 1,100 square feet. However, with removal of the inside slip, the proposed dock area would apparently increase to less than 1,000 square feet, and thus may be exempt from DER permitting altogether.3 Petitioners presented a series of grievances concerning use of the DSI Lodge by inconsiderate guests. These complaints included discharging a rifle and fireworks, high speed operation of power boats adjacent to the river's edge (bulkhead) and congestion of boating activity resulting from numerous guests using the DSI facilities during holiday periods. The careless or congested boating activity may affect the quality of life for DSI Lodge neighbors and endanger wildlife such as manatee which sometimes inhabit these waters. However, it was not shown that the proposed dock extension would affect these environmental considerations since D.S.I. Forms, Inc. already owns and operates the boat which would be accommodated by the additional slip (see footnote 2 above). Further, the testimony of the DER field representative established that the presence of the extended dock, as well as its construction, would not degrade water quality.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order issuing the proposed permit to D.S.I. Forms, Inc. with an added condition requiring removal of the existing inside boat-slip. DONE and ENTERED this 26th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
The Issue The issues to be determined in this case are whether Respondent Thomas Rosati is entitled to the Noticed General Permit and the Letter of Consent to use sovereignty submerged Lands issued by the Department of Environmental Protection ("Department"), which authorize the replacement of an existing private dock with a new private dock in the St. Lucie River in Martin County, Florida.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department also has responsibility to process and act on applications for authorization to use sovereignty submerged lands through a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees"). Rosati owns real property at 2391 Southwest Riverside Drive, Palm City, Florida. He is the applicant for the authorizations at issue in this case. Rosati does not currently own a boat, but he wants to obtain a boat that is large enough to use in the Atlantic Ocean. Petitioner Bryan Fleming owns real property that borders Danforth Creek. He also owns two nearby lots which entitle him to undivided interests in a community dock on Danforth Creek. Fleming owns several boats, including a 23-foot Penn Yan motorboat which he moored at docks on Danforth Creek. Petitioner Diane Haskett owns property that borders Danforth Creek. She has been an avid boater most of her life, but currently only co-owns, with Fleming, a 33-foot sailboat which they do not keep on Danforth Creek. She is a frequent passenger on Fleming's Penn Yan. Notice of Agency Action Rosati arranged for publication of a "Notice of General Permit" in the October 30, 2012, edition of The Stuart News. The notice was in the exact form suggested by the Department in its September 19, 2012, letter to Rosati. The notice reads in pertinent part: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF GENERAL PERMIT The Department of Environmental Protection gives notice that the project to remove an existing dock, and relocate and construct a new dock with an access walkway measuring 4 ft. by 392 ft. and ending in an 8 ft. by 20 ft. terminal platform, including two associated 12 ft. by 12 ft. boatlifts (total 1,728 sq. ft. structure, total 2016 sq. ft. preempted area), has been determined to qualify for a noticed general permit. This is the form of publication regularly used by the Department to notify the general public that the Department has determined a proposed project qualifies for a Noticed General Permit and a Letter of Consent. The exact location of the Rosati property was also included in the newspaper notice. Petitioners did not see the newspaper publication. Fleming first became aware of the Rosati dock when he saw it being constructed on January 13, 2013. He went to the Department's offices and inquired about the dock. Petitioners filed their petition for hearing on January 23, 2013, 10 days after receiving actual notice of the Department's agency action on the Rosati dock. Background Facts The east side of Rosati's property borders the St. Lucie River, which is designated a Class III water. The submerged lands in the area of the Rosati property are sovereign submerged lands of the State of Florida. The river bottom in the area is sandy. There are no corals, marine grass beds, or other significant aquatic resources. The south side of Rosati's property borders Danforth Creek. Danforth Creek is a navigable waterbody with normal depths of three feet or more. Rosati's shoreline along the Creek is approximately 275 linear feet in length and his river shoreline is approximately 125 feet. Rosati has a dock on Danforth Creek. It is in a basin that was created by excavating the private upland. The bottom of the basin is not state-owned sovereign submerged lands. Danforth Creek flows into the St. Lucie River near the southeast corner of the Rosati property. At its confluence with the St. Lucie River, there is a shoal or sandbar that most likely formed by the deposition of sediment carried out of the Creek. Rosati had a small (32 feet long) dock on his shoreline on the St. Lucie River. The Noticed General Permit and Letter of Consent allow Rosati to remove this old dock, which he has already done. The shoal at the confluence of the Creek and River restricts navigation in and out of Danforth Creek. Navigation in and out of Danforth Creek is usually impossible during low tides, except in a canoe, kayak, or other vessel requiring only a few inches of water. The most reliable route between the Creek and the River is a narrow channel only 2 to 3 feet deep at higher tides. This channel, which runs close to Rosati's eastern shoreline, shall be referred to hereafter as the "deeper channel." For many years, Fleming regularly used the deeper channel to take his 23-foot Penn Yan motorboat from Danforth Creek into the St. Lucie River and back again. The Penn Yan has a draft of about 18 inches. Using the deeper channel, Fleming could navigate in and out of Danforth Creek every day on the high tides. An unknown boater stuck a white PVC pipe into the river bottom at the side of the deeper channel to indicate its location. The New Dock Rosati's new dock was substantially completed at the time of the final hearing in June 2013. The new dock is four feet wide, 392 feet long, and terminates at a water depth of minus four feet mean low water. The other docks in the area are much shorter. The St. Lucie River in this area is more than 2,000 feet wide. Therefore, the dock extends into the River less than 20 percent of the width of the River. The total dock square footage of Rosati's dock on Danforth Creek and his new dock does not exceed 2,000 square feet. The dock, terminal platform, and boat lifts "preempt" 2,016 square feet of sovereign submerged lands, meaning that the dock excludes public use of this area of river bottom. Rosati's new dock crosses the deeper channel. It would cross the deeper channel even if it were half as long. The Letter of Consent authorizes Rosati to preempt from public use that portion of the deeper channel that lies beneath the new dock. Now, the only route that can be used by boaters wanting to navigate in and out of Danforth Creek is a narrow channel south of Rosati's new dock, between the dock and a spit of land about 15 feet away. This route can become dry at low tide and is only about a foot deep at high tides. This south route was used by Department staff during high tide using a boat drawing 8 to 12 inches of water. At low tide, they were unable to use this route to get from the St. Lucie River into Danforth Creek, but were able to use the deeper channel that now runs beneath the Rosati dock. Fleming would not be able to take his Penn Yan through the route on the south side of the Rosati dock except in rare high water conditions, such as may occur during or after hurricanes or heavy storms. No member of the general public who formerly used the deeper channel in a vessel drawing more than a foot of water would be able to use the south route except in rare high water conditions. In addition to the shallow character of the south route, it is in a narrow space between the Rosati dock and the sand spit. This route is only reasonably navigable by canoes, kayaks, and similar small, shallow-draft vessels. The Department contends that the general public has not been affected by the Rosati dock. However, all persons wishing to navigate in and out of Danforth Creek, including Fleming, other riparian landowners on Danforth Creek, and other members of the boating public are prevented from doing so in vessels which, just prior to construction of the Rosati dock, they could have used to navigate in and out of the Creek. Respondents further assert that the shoal may get worse and the deeper channel may become more shallow. This was mere speculation, with no timeframe offered. Furthermore, it was not shown that the deeper channel would not remain the best means of navigating in and out of Danforth Creek. Rosati's consultant did not make a site visit before submitting the forms for the Noticed General Permit and no Department employee made a site visit before the Department issued its letter of September 19, 2012. Included in the materials submitted by Rosati's consultant to the Department for the Noticed General Permit is an aerial photograph with a white arrow superimposed on the south side of the proposed Rosati dock to indicate a channel or water route from Danforth Creek into the St. Lucie River. The current or historical elevation of the route indicated by the white arrow was not established in the record. It is now overgrown with upland grass and is not an alternative water route for boaters wanting to get in and out of Danforth Creek. The information submitted to the Department by Rosati's consultant did not inform the Department that the best (deepest) route in and out of Danforth Creek would be blocked by the Rosati dock. The information implied that the proposed Rosati dock would not impair navigation in and out of Danforth Creek. Although not shown to be intentional, the information was misleading because it failed to inform the Department of the true site conditions and the impacts on navigation that would be caused by the proposed dock.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order determining that Thomas Rosati qualifies for the Noticed General Permit, and denying the Letter of Consent to use sovereignty submerged lands. DONE AND ENTERED this 31st day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2013. COPIES FURNISHED: Patricia E. Comer, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathan E. Nason, Esquire Gregory Hyden, Esquire Nason, Yeager, Gerson, White and Lioce, P.A. Suite 1200 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock and Heims, P.A. Post Office Box 1197 Stuart, Florida 34995-1197 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of September, 1995.
The Issue The issues in this case involve the status of a private, single-family dock built by the late Edward Neal Imhoof and his widow, Juanette Imhoof, on the Indian River in New Smyrna Beach, Florida.
Findings Of Fact Juanette Imhoof owns and resides on a piece of residential property (Imhoof property) located at 1402 Riverside Drive, New Smyrna Beach, Florida. Mrs. Imhoof's ownership is evidenced by a warranty deed and a quitclaim deed. The warranty deed describes property bordered on the east side by a road named Riverside Drive. East of Riverside Drive is a strip of undeveloped land between Riverside Drive and the water line. Mrs. Imhoof claims this strip of undeveloped land as her riprarian uplands. Her quitclaim deed includes the property described in the warranty deed "together with any and all riparian rights appertaining to or belonging to the above described property." Petitioner, Harris J. Samuels, and his wife, own a piece of property adjacent to the south side of Mrs. Imhoof's claimed riparian uplands. Their lot narrows to approximately 35 feet wide at the river. They have a small dock which extends into the water from their riparian uplands. In the year 2000, Mrs. Imhoof's late husband, Edward Neal Imhoof, contacted DEP Central District Office about obtaining authorization to build a dock on the Imhoofs' riparian uplands. In April of 2000, Mrs. Lisa Prather (f/k/a Lisa Moll), at that time an Environmental Specialist with DEP, visited the Imhoof property in order to do a pre-application site inspection. Following the onsite inspection, Mrs. Prather received an exemption application from Mr. Imhoof on July 12, 2000, which included copies of the Imhoofs' warranty deed and quitclaim deed. The application also included a drawing of the proposed dock. According to the drawing, Mr. Imhoof intended to build his dock on the southern side of the claimed riparian upland. The access pier was depicted mostly parallel to and approximately ten feet from Petitioner's northern property line. Near the terminal platform, the access pier angled to the northeast, and the platform was centered on and perpendicular to the access pier. According to Florida Administrative Code Rule 18- 21.004, a dock must be set back "a minimum of 25 feet inside the applicant's riparian rights lines" unless it qualifies for a waiver. In order to qualify for a waiver, DEP must determine that locating the dock within 25 feet of the riparian rights lines will minimize or avoid impacts to natural resources. See Conclusion of Law 26, infra. However, Mrs. Prather testified that, at the time she received this application, it was not DEP's practice to consider the 25-foot setback requirement when granting exemptions. Subsequently, DEP's legal counsel advised her to consider such waivers when granting exemptions. Mrs. Prather relied on the quitclaim deed and the survey included in the application to determine that the Imhoof property had sufficient riparian upland interest to qualify for an exemption and BOT consent of use. In addition to these materials, Mrs. Prather relied on the Property Appraiser's records, which indicated that there are riparian rights attached to Lot 2, which was owned by Mr. and Mrs. Imhoof. In addition, almost every other similarly-situated property on Riverside Drive to the north of the Imhoofs' property has a dock built on the strip of land between Riverside Drive and the water line. Based on Mrs. Prather's review, DEP granted Mr. Imhoof's exemption application. On August 8, 2000, DEP issued Edward Neal Imhoof a Notice of Exemption for construction of a 628 square foot private, single-family dock on the Indian River in New Smyrna Beach. The Notice of Exemption informed Mr. Imhoof, among other things, that his proposed dock was "exempt from the need for an Environmental Resource Permit (ERP) under Rule 40C-4.051(11)(g), Florida Administrative Code." However, it also informed Mr. Imhoof that its regulatory exemption "determination shall expire after one year." In a separate authorization, it also informed him, that his proposed dock "qualifies for a consent to use sovereign, submerged lands" from the BOT. In relation to both authorizations, it also informed Mr. Imhoof,: "If you change the project from what you submitted, the authorization(s) granted may no longer be valid at the time of commencement of the project. Please contact us prior to beginning your project if you wish to make any changes." (Emphasis in original.) Construction on the dock in question did not commence within a year of the exemption determination. The evidence was confusing, but it appears that the Imhoofs may have sought a dock permit from the City of New Smyrna Beach during the summer of 2002, and that a question arose as to whether DEP would allow the Imhoofs to build their dock within ten feet from Petitioner's northern property line.5 On July 22, 2002, Mrs. Prather stated in an email to an individual named Seann Smith, who was not further identified by the evidence: "The Department is authorized to waive any setback waiver [sic] if it [sic] the proposed location will have less environmental impact. Therefore, Mr. Imhoof is authorized to construct his dock 10 feet from his property line." There was no other action from DEP waiving the setback requirement; nor was there any action to extend the duration of the regulatory exemption. Construction of the Imhoofs' dock did not begin until approximately April of 2003. On May 5, 2003, Mr. Samuels filed a complaint with DEP regarding the proximity of the Imhoof dock to his own. DEP also received a complaint from the City concerning the dock and trimming of mangroves. Also in May of 2003, Mrs. Prather received a telephone call from Chip Steele, an environmental consultant for the Imhoofs, who inquired as to setback requirements and requested a waiver. It appears that on May 23, 2003, Mr. Imhoof emailed a letter to Mrs. Prather at DEP requesting a waiver from the 25- foot setback requirement for the Imhoofs, who inquired as to a waiver from the setback requirement. It appears that he attached a copy of the email from Mrs. Prather to Seann Smith dated July 22, 2002.6 As further support for the granting of the waiver, Mr. Steele sent Mrs. Prather a photo of the property and a letter outlining his analysis for granting of a waiver of the 25-foot setback requirement, as well as a proposed location for the dock. Based on this information, as well as her previous site inspection in April of 2000, Mrs. Prather apparently confirmed that the dock was eligible for a waiver to the 25-foot setback requirement, and construction commenced. There was no evidence of any additional writing from Mrs. Prather or DEP determining that the 25-foot setback was waived. The dock, as built, is not in the same place as proposed in the materials previously provided by Mr. Imhoof and Mr. Steele. Instead, the access pier proceeded for most of its length, but not all the way through the mangrove fringe, approximately 11 feet from Petitioner's northern property line (as previously proposed). Then, earlier than previously proposed, and still within the mangrove fringe, the access pier angled to the northeast for a short distance, taking it farther away from Petitioner's northern property line (but apparently still within 25 feet of the property line), before angling back to the east and then to the southeast for short distances before terminating in the platform, which extended south towards the riparian rights line. As built, the platform of the Imhoofs' dock is approximately 17 feet north of the platform of Petitioner's dock. Mrs. Prather testified that the dock, as built, still falls within the parameters to be granted a waiver from the 25-foot setback requirement. Mrs. Prather testified that the first 80 feet of the access pier (where it parallels Petitioner's northern property line) is devoid of mangroves, whereas the remainder of the property was at least 85 percent covered with mangroves. Therefore, placing the dock on the south side would result in less destruction of natural vegetation and less loss of habitat. Aligning the dock wholly or partially through the middle of the lot, which was one of Petitioner's alternative proposals, would be more detrimental to the environment because it would bisect the healthy mangrove fringe. In addition, the dock, as built, has been elevated to minimize impact to the vegetation from shading, at a greater expense to the Imhoofs, even though it is not required to be. Mrs. Prather testified that the as-built location avoids or minimizes environmental impacts due to shading, edge effect, and diversity. Carolyn Schultz, a biologist, confirmed the testimony of Mrs. Prather. Mrs. Schultz testified that, on the southern boundary of the claimed riparian uplands, where the access pier was placed, fill material from Petitioner's property extends onto the Imhoofs' claimed riparian upland and has created an edge effect. As a result, this area already has been disturbed, and placement of the dock in that location, as opposed to the less impacted area elsewhere on the Imhoofs' claimed riparian uplands, would be less of an environmental impact. Petitioner presented an expert biologist, Joe H. Young, to testify regarding the placement of the Imhoof dock. It was Mr. Young's opinion that placing the dock farther to the north side of the property would result in less environmental impact. Mr. Young proposed angling the access pier to the northeast sooner (i.e., closer to Riverside Drive, namely approximately 112 feet from the road), and continuing it in that direction until termination in the platform, which would be much farther north (and farther away from the riparian rights line and Petitioner's dock) than as-built. Mr. Young calculated that approximately 30 square feet less mangrove fringe would be impacted under his proposal. (It appears that his proposed alternative dock also would still not meet the 25-foot setback requirement.) However, Mr. Young did not perform any type of percentage-of-cover or qualitative analysis. The Imhoofs' expert, Mrs. Schultz, performed such an analysis and found that the mangrove fringe was thicker and healthier (primarily, more diverse) where Mr. Young proposed that the dock be built. Even disregarding relative health of the mangrove fringe in the two locations, when she factored in percentage-of-cover, Mrs. Schultz found that 5 square feet less mangrove vegetation was impacted by the Imhoofs than would be under Mr. Young's proposal. Petitioner did not rebut the testimony of the opposing experts that the as-built location was preferred because of factors such as diversity, edge effect, and shading. The evidence is clear that, waterward of the mangrove fringe, there is no significant difference in natural resources to be impacted by placement of the Imhoofs' dock. In other words, placement of the terminal platform in the as- built configuration is not necessary to avoid or minimize adverse impacts to natural resources. Extending the platform to the north, away from the riparian rights line and Petitioner's dock, would be just as environmentally-friendly. Petitioner testified that the location of Mrs. Imhoof's dock, approximately 17 feet to the north of his dock, interferes with his riparian rights and the use of his dock for kayaks and sailboats. As for riparian rights, Petitioner accepted the riparian rights lines drawn by Respondents for purposes of this case. Those riparian rights lines indicate not only that Mrs. Imhoof's dock does not interfere with Petitioner's riparian rights but that Petitioner's dock actually interferes with Mrs. Imhoof's claimed riparian rights. As for launching and docking kayaks and sailboats, the location of Mrs. Imhoof's dock interferes with Petitioner to some degree, especially in certain current and wind conditions. Some degree of such interference may not be unreasonable, especially given the location of Petitioner's dock within Mrs. Imhoof's claimed riparian rights lines. But there was no valid, natural resource-based reason for the Imhoofs to construct the platform of their dock so as to extend south towards the riparian rights line and Petitioner's dock. The DEP representative who took Petitioner's complaint on May 5, 2003, wrote on the complaint form: "Mr. Imhoof constructed dock longer and closer to his dock than we authorized in our exemption of August 2000." The "we" appears to refer to DEP, not Petitioner. It appears from the evidence that Petitioner first learned of the existence of the Imhoofs' exemption in early May 2003, when he went to the City of New Smyrna Beach to complain about the location of the dock being constructed by the Imhoofs. However, on its face, the exemption appeared to have expired well before construction began. On May 20, 2003, DEP conducted a site investigation of the complaints against the Imhoofs. After the site visit, DEP representatives spoke to Petitioner and told him that the Imhoofs' dock was exempt and had a waiver from the setback requirement. On or about May 22, 2003, Mr. Samuels went to DEP's Central Office and obtained another copy of the expired exemption. On July 1, 2003, Mr. Samuels mailed DEP his Amended Petition. It was not clear from the evidence whether there was an earlier petition or, if so, when it was filed. Respondents did not file a motion to dismiss the Amended Petition as being untimely; however, their PRO raised this issue. It was not clear from the Amended Petition whether Petitioner was requesting an administrative hearing on proposed agency action (to determine de novo whether Mr. Imhoof's proposed dock should be exempt), or whether he was requesting revocation of the exemption for construction not consistent with the exemption. The Amended Petition did not articulate that the exemption expired before construction, or take the position that Mr. Imhoof's dock was constructed without the benefit of a valid regulatory exemption (or permit) and BOT consent of use.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mrs. Imhoof: is entitled to a regulatory exemption for her dock; and should be given consent of use by the BOT for her dock, so long as the terminal platform extends to the north, away from the riparian rights line and Petitioner's dock. DONE AND ENTERED this 17th day of February, 2004, 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 17th day of February, 2004.
