The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
Findings Of Fact Based on the Stipulation of counsel, the exhibits, and the pleadings filed herein, the following findings of fact are made: On December 11, 1998, Ms. Morro, who is the wife of Michael J. Morro, the developer of the property, filed her application with the District for an Environmental Resource Permit (ERP), which would authorize the construction of a surface water management system (including one wet-detention pond) to serve a 12-lot, single-family residential subdivision known as Tranquility on Lake Brantley in Seminole County, Florida. In more specific geographic terms, the project is located on the south side of Wekiva Springs Road, on Cutler Road, and on the north side of Lake Brantley near the City of Longwood. The application was assigned number 40-117-0567A-ERP. The exhibits filed herein suggest that Ms. Morro, and not Mr. Morro, owns the subject property. After determining that the Applicant provided reasonable assurance that the proposed activities met the conditions for issuance of a permit and the system was consistent with its review criteria, on July 14, 1999, the District approved the application and issued Permit Number 40- 117-51722-1 (1999 Permit). However, the Permit did not authorize the construction of a retaining wall on Lot 10 of the Applicant's property. There is no record of any third party challenging the issuance of the 1999 Permit. On February 19, 2002, the Applicant submitted "as built drawings" to the District, as required by Condition 10 of the 1999 Permit, to enable the District to verify that the work was completed in compliance with the approved plans and specifications. These as-built drawings did not reflect a retaining wall on Lot 10. Mr. Adley resides and owns property at 880 Lake Brantley Drive, Longwood, Florida, which is "next to" the Morro property. It is fair to say that a less-than-harmonious relationship exists between the two neighbors. Indeed, the exhibits reflect that Mr. Adley, the Applicant, and the Applicant's surveyor "have been involved in several causes of action between them over details of development on this property," and that over the years Mr. Adley has filed numerous complaints with the District regarding alleged violations by the Applicant while she performed work under the 1999 Permit. Mr. Adley is familiar with ERPs and the process for obtaining one, having had ownership interests in businesses that have obtained ERPs from the District, and having participated in the activity undertaken to obtain the permits and then implement the activities authorized by the permits. On May 16, 2003, Mr. Adley sent a letter to Kirby A. Green, III, Executive Director of the District, citing seven issues regarding Ms. Morro's proposed subdivision and asking that he be notified, in writing, "of any modifications to the permit, request for modifications of the permit, notice of violations, change to the approved plan, changes to the Covenants and Articles of Incorporation, any other changes to the proposed construction activities and any public notices that would effect [sic] [his] right to file for an administrative hearing." Mr. Adley also indicated that he had scheduled a meeting with William E. Carlie, Jr., District Compliance Manager, to be held on May 19, 2003, "to discuss these issues with him in person." On May 29, 2003, Mr. Adley sent a letter to Duane Ottenstroer, then Chairman of the District's Governing Board, regarding "the subdivision being constructed next to [his] home." In his letter, he voiced concerns about the recorded conservation easement on the Morro property being significantly different from the easement approved by the 1999 Permit. He also complained that the Applicant had submitted false information with an application submitted to the District in 1991. Finally, he enclosed a copy of the letter previously sent to Mr. Green. On June 6, 2003, Mr. Adley sent a second letter to Mr. Carlie advising that the Applicant was violating the conditions in the 1999 Permit in five respects. The letter confirmed that Mr. Adley would again meet with District staff concerning this matter on June 11, 2003. After conducting an investigation regarding Mr. Adley's allegations of violations by the Applicant, on September 12, 2003, K. Wilford Causseaux, an engineer in the Department of Water Resources, sent a letter to the Applicant's surveyor, Michael W. Solitro (who Mr. Adley says is the former Seminole County Surveyor who loaned the Applicant money in April 1998 to develop the land and then purchased a discounted lot from the Applicant in return for "development services"), affirming the staff's finding that the "construction on [Morro's] residential property on Brantley Drive has encroached on the 100-year flood plain in the rear yard of Lot 11." Also, the letter identified the remedial steps that must be undertaken to correct three "issues associated with [the] residential construction." Finally, the letter noted that Mr. Morro had agreed to remove fill on Lot 7 that violated the "limits of construction" and return the rear-lot grading to its pre-development condition. On September 29, 2003, Mr. Adley sent a third letter to Mr. Carlie confirming that the District had not allowed the Applicant to construct a retaining wall in lieu of a swale on Lot 11 and that if the Applicant wished to construct a wall, she must apply for a modification to the 1999 Permit. The letter also noted that Mr. Carlie agreed to notify Mr. Adley "in writing of any modification to the permit," including "minor" modifications. Finally, Mr. Adley requested the status of the incorrect conservation easement recorded on the property. Apparently in response to that letter, by email dated October 10, 2003, Mr. Carlie notified District counsel that Mr. Adley "has submitted a written request for actual notice of any proposed modification of this permit, will likely object, and potentially will challenge any agency action in this regard to a 120 hearing." On October 24, 2003, Mr. Carlie responded to Mr. Adley's letter of September 29, 2005, and advised him that the staff had determined that "portions of the fill placed for development of [Lot 11] are waterward of the limits of construction" and that this action "is a violation of the permit subject to enforcement action." The letter confirmed that the District understood Mr. Adley's "request to be noticed of any modifications of the reference permit" and promised that "actual notice (mailed notice to your residence) of any action this agency undertakes in this regard" would be given. Mr. Carlie further explained that some modifications to a permit could be issued by letter, while other modifications required an application, fee, and formal agency action. He indicated that the remedial steps outlined in his letter dated September 12, 2003, to Mr. Solitro "may qualify for a permit modification by letter under the provisions of section 40C-4.331 F.A.C." Finally, Mr. Carlie stated that the "District continues to understand your concern about this project and request to be noticed of any modifications of the reference permit. You will be provided actual notice (mailed notice to your residence) of any action this agency undertakes in this regard." Also on October 23, 2003, Mr. Carlie sent a second letter to Mr. Adley outlining in detail the results of the District's investigation of Mr. Adley's concerns expressed in various letters and at least two meetings with staff. On May 3, 2004, Frank J. Meeker, the District's Ombudsman, sent Mr. Adley a letter regarding a Verified Complaint dated April 1, 2004, that Mr. Adley had filed with the Executive Director. (The Verified Complaint was not included in the exhibits which accompanied the Stipulation, but a copy is attached to the Motion.) The letter responded to "six specific objections" Mr. Adley had raised concerning work on the Morro property. It also instructed the District staff to prepare, within thirty days, a letter of modification to the 1999 Permit which addressed the conservation easement, monuments, and 100- year flood elevation issues, together with a recommendation for approval or denial, and to submit the modified conservation easement to the Executive Director for approval or denial. Finally, the letter noted that Mr. Adley would receive "written notice of these actions" and an opportunity to object to these modifications. The record is unclear whether Mr. Meeker's instructions to staff resulted in a letter of modification to the 1999 Permit without further action by the Applicant, or whether it triggered an application by the Applicant to modify her 1999 Permit based upon the staff recommendations. More than likely, the latter occurred. On May 26, 2004, Mr. Meeker provided a follow-up letter to Mr. Adley in which he confirmed that Mr. Adley had been given a copy of the project plans dated June 17, 1999, used by Ms. Morro in securing the 1999 Permit. He further advised that until he received a staff survey "to determine the size of the dock [for purposes of determining if a permit was required] and the location of the red wall and retaining wall," no disposition of those issues could be made. Finally, he advised that no formal request for modification of the 1999 Permit had been filed, but if and when one was filed, he was "directing staff to supply you with a copy of such application." On July 6, 2004, Ms. Morro filed an application with the District seeking to modify her 1999 Permit. (The application noted that Mr. Morro would serve as Ms. Morro's authorized agent to secure the permit.) In the application, Ms. Morrow described the proposed activity as follows: "Alteration of permitted conservation easement[,] to remove easement from lot 11[,] and provide reserved rights for construction of 2 single family docks." This application was assigned number 10-117-51722-2. As noted above, the application did not include a provision for a retaining wall on Lot 10. However, sometime between the time the application was filed in July 2004 and January 21, 2005, the Applicant amended her application to add a request for a retaining wall. By email dated July 12, 2004, counsel for the District notified the reviewer of the application, Anthony Miller, that "I told Mr. Adley to call PDS [Permit Data Services]. Who should I contact there to see what notice was sent? Mr. Adley is going to challenge this so we need to make sure everything is done right." Mr. Miller emailed back the following response: "I have no idea. I assume it was noticed as usual through PDS to those listed to receive notices. Should we do anything more, like contacting Mr. Adley directly?" By letter dated July 15, 2004, Mr. Carlie forwarded a "complete copy" of Ms. Morro's application to Mr. Adley. The letter noted that Mr. Adley's receipt of the letter, attached materials, and notice of rights "shall serve [as] the notice you requested for the purposes of timeframes under Chapter 120, F.S." (A copy of Notice of Rights was enclosed; it set out in detail the process by which Mr. Adley could request a formal hearing.) The enclosed construction drawings did not indicate the inclusion of a retaining wall. During the staff's review process of the application, two Requests for Additional Information (RAI) were sent by the District to Mr. Morro on August 3, 2004, and January 21, 2005. Significantly, item 4 on page 2 of the RAI dated January 21, 2005, noted that "[t]he plans indicate that a retaining wall is proposed. Please provide detailed calculations, and a revised wall detail as necessary, to demonstrate that this portion of the surface water management system will function as intended." (Emphasis added) Copies of both RAIs were sent to Mr. Adley. On February 28, 2005, the Applicant filed a letter and attachments in response to the January 21, 2005 RAI, which included, among other things, plans and details prepared by a professional engineer for a retaining wall to be located landward of the 100-year floodplain, the limit of construction. The Stipulation and exhibits do not indicate whether these documents were ever provided to Mr. Adley at that time.1 However, on March 9, 2005, they were provided to his counsel for review. See Finding of Fact 21, infra. By letter dated January 21, 2005, Mr. Adley's former counsel (Timothy A. Smith, Esquire) made a public records request for inspection of "the district files relating to permit numbers 40-117-51722, 40-117-0567, and any other district permits or applications for such permits relating to the property owned by Frances and Michael Morro on Brantley Drive along the northern shore of Lake Brantley." (The letter indicates that Mr. Smith would meet District counsel in Palatka on January 25, 2005, to review this part of the records request.) The letter also requested that Mr. Smith be allowed to review all files of eleven District employees which related to the various iterations of the Morro project in 1990-1991, 1997-1998, and 1999 to present. The records pertaining to the second part of the request were apparently located in another office and were to be inspected at a later time. According to the Stipulation, in response to the public records request, on March 9, 2005, Mr. Smith reviewed all requested files in the District's main office in Palatka and the District's field office in Altamonte Springs. (As noted above, part of the records were inspected on January 25, 2005, in Palatka.) It is fair to infer that on March 9, 2005, Mr. Smith would have had the opportunity to review the Applicant's plans and details for a retaining wall filed with the District on February 28, 2005. By this time, then, Mr. Adley should have been on notice that the Applicant had modified her application and now sought to build a retaining wall. On March 30, 2005, the District, through its Altamonte Springs field office, approved Ms. Morro's application and issued Permit No. 40-117-51722-2 (2005 Permit). The 2005 Permit authorized the modification of the 1999 Permit "to include the construction of a retaining wall along the rear of Lots 6, 7, 8, 9, and 10 and the 'lot split' lot, and to amend the easement on Lots 9 and 10, to allow selective clearing and trimming of the conservation easement in accordance with a District approved landscape plan, and to exclude lands no longer under the applicant's control." On April 10, 2005, notice of the issuance of the 2005 Permit was published by Ms. Morro in the Sanford Herald, a newspaper of general circulation in Seminole County. See Fla. Admin. Code R. 40C-1.1007(1). The Notice provided that "[p]etitions for administrative hearing on the above application must be filed within twenty-one (21) days of publication of this notice or within twenty-eight (28) days of the District depositing notice of this intent in the mail for those person to whom the District made actual notice. Failure to file a petition within this time period shall constitute a waiver of any right(s) such person(s) may have to request an administrative determination (hearing) under sections 120.569 and 120.57, F.S. concerning the subject permit." Therefore, if notice was received by publication, petitions objecting to the issuance of a permit were due no later than May 1, 2005, or if written notice was given, petitions were due no later than May 8, 2005. The District did not send Mr. Adley written notice of its intent to issue the 2005 Permit. There is no indication in the Stipulation, exhibits, or Motion as to why notice was not sent, particularly since Mr. Adley had made numerous requests for written notice of any District action on the property, and he had been promised such notices by various District personnel since at least October 2003. On April 25, 2005, Ms. Morro began construction of the retaining wall authorized by the 2005 Permit and construction continued over the next thirty calendar days. It is fair to assume that the wall was completed on or about May 25, 2005. Also on April 25, 2005, or the day construction began, at Mr. Adley's direction, Mr. Smith (his former counsel) telephoned Mr. Carlie to inform him that construction activity on Lot 10 was taking place. Therefore, it is clear that on that date, Mr. Adley had observed that construction on the Morro property had begun. In response to Mr. Smith's telephone call, Mr. Carlie then requested that two District employees, Mr. Casseaux and David Eunice, investigate what was occurring on the Morro property. On the same date that Mr. Smith telephoned Mr. Carlie, Casseaux and Eunice inspected the Morro property and observed that a retaining wall authorized by the 2005 Permit was under construction. It is fair to infer from the stipulated facts that Mr. Carlie reported these findings to Mr. Smith within a short period of time. On an undisclosed date, but presumably within a day or so, Mr. Smith reported to Mr. Adley that he had spoken with Mr. Carlie and was told the construction was in conformance with "the Permit" but that Mr. Carlie did not specifically refer to either the 1999 Permit or the 2005 Permit as authorizing the work. The Stipulation and exhibits do not indicate whether Mr. Carlie advised counsel that the 2005 Permit had been approved. However, given the history of this dispute, it would be highly unusual for counsel not to make inquiry about the disposition of the application, or for Mr. Carlie not to provide this information during the course of their telephone conversations, particularly since Mr. Carlie was well aware of Mr. Adley's long-standing interest in the Morro project. Mr. Adley could not tell from his view of the property whether the exact location of the construction was lakeward of the limits of construction, which was the 100-year floodplain, and therefore could only rely on the District staff. Mr. Adley asserts that he did not learn of the 2005 Permit modification until July 25, 2005, through a conversation with an unidentified neighbor. Whether Mr. Adley (or his counsel) then called the District to verify the accuracy of the neighbor's information is not of record. (The initial Petition for Administrative Hearing simply alleges that "petitioner received notice of the District's action on July 25, 2005, through a conversation with a neighbor.") On August 15, 2005, or twenty-one days later, through counsel, Mr. Adley filed his initial Petition for Administrative Hearing with the District challenging the issuance of the 2005 Permit. (The Amended Petition was later filed on October 12, 2005, as a result of the striking of certain allegations in the first filing.) The District's Motion was then filed on November 16, 2005. (Action on the Motion has been delayed because of substitution of Petitioner's counsel, and delays by the parties in taking discovery and preparing the Stipulation.)
The Issue Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
Findings Of Fact Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach, Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet. Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet. The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet. DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida. The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code. In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State. The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land. PERMIT APPLICATION FOR MAIN CANAL On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week. The application file number for the requested permit in the Main Canal project was: 0124938-001 JC. The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project. The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL. On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal. More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit. The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal. The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline. The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside. A recreational area is located on the western side of the Main Canal. The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City. The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules. Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the existing Class III marine waters in the Main Canal and degradation of the Gulf. The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards. The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand. The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described. The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others. The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected. The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone. Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest. PERMIT APPLICATION FOR 8TH STREET OUTLET On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred. The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC. The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details. More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis. On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet. The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system. In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert. By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf. By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests. Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property. The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge. The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters. The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet. Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP. The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport. The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create parallel trenches in the sand that inhibit movement on the beach by sea turtles. The 8th Street outlet project will not create significant erosion concerns or turbidity concerns. The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf. CONSENT TO USE SOVEREIGN SUBMERGED LANDS The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom. The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein. DONE AND ENTERED this 10th day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998. COPIES FURNISHED: Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida 32410 Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida 32410 Robert Davenport Post Office Box 13926 Mexico Beach, Florida 32410 Gerard Murnan Post Office Box 13378 Mexico Beach, Florida 32410 Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547 Panama City, Florida 32402 Ricardo Muratti, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 John McInnis, City Manager City of Mexico Beach Post Office Box 13425 Mexico Beach, Florida 32410 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The site of the revetment that is the subject of this litigation is located near the northerly coast of Pine Island in Charlotte Harbor. The property fronts on Pine Island Sound which is inside the barrier islands westward of Pine Island. Pine Island Sound is as an Outstanding Florida Water and Charlotte Harbor at this location is classified as Class II waters. Petitioner's property abuts the property owned by Meister Development Group. On Petitioner's property is located a two-story residence and two rental units. On Meister's property a four unit residential development has been erected. Sometime around 1970 a vertical seawall was erected to protect both Petitioner's property and Respondent's property. Since that time the beach has accreted to the point that by 1989 the sand beach extended an average of approximately twenty-five feet seaward of the seawall in front of Petitioner's property. However, this seawall ended near the middle of Respondents property and erosion of the beach became serious at the four unit residential development building located thereon in 1984. In 1984 the beach at this location had eroded to the point that the high water mark had passed the northern most portion of the building foundation and was threatening to undermine the structure. At this time this shoreline was devoid of aquatic vegetation. Meister employed an engineering firm to prepare a solution to the erosion problem. That firm concluded a revetment was needed and the application for the dredge and fill permit that is here contested was filed in July 1984. Since the application involved use of land seaward of the mean high water, permission of the Department of Natural Resources (DNR) was required before the application could receive final approval. To obtain the approval of DNR Meister agreed to provide a conservation easement to DNR and a public easement to allow the public access to cross the property seaward of the residential development. Additionally Meister conferred with Outstanding Florida Water Group to obtain their acquiescence to the project and agreed to provide navigational aids to mark the Jug Creek Channel across form the Meister property. Before a dredge and fill permit can be granted involving an Outstanding Florida Water the applicant must show the project to be in the public interest. In consulting with DER the applicant proposed a sloping revetment which is generally considered to better tolerate wave action than does a vertical wall. To enhance the public interest concept the applicant agreed to place toe stones at the foot of the revetment and plant mangroves. The toe stones would serve to hold sand in which the mangroves could grow and serve as a habitat for aquatic organisms. The applicant also agreed to place an artificial reef of rocks on the sand shoal which sits about one half mile north of applicant's and petitioner's property. Although the mangroves planted did not survive due to heavy wave action and the permit did not require survivability of these mangroves, at the hearing Meister agreed to a provision in the permit's next renewal that will include a requirement that a percentage of these mangroves planted in the toe stones survive. Landward of the residential development is a stormwater retention area that serves to keep contaminants out Pine Islands Sound. The erosion of the beach at the Meister property was threatening to extend further inland and allow contaminants to leach from the water retention area into Pine Island Sound and contaminate that body of water. Approval of the project would serve to remove that threat and be in the public interest. Finally consideration was given to the fact that the foundation of the condominium was being threatened which affected the dwelling of the residents. Protecting these residences is also considered to be in the public interest. The project was completed during a two weeks period in August 1986. The revetment generally takes off in the same line as the Vertical seawall on petitioner's property and is basically convex to fit the existing building and meet the zoning setback requirement of twenty-five feet from the building. To construct the revetment the existing vertical seawall on Meister's Property had to be removed. During construction turbidity screens were installed and construction was restricted to periods of low water to reduce turbidity. Any excess turbidity caused by the construction would settle out within twenty-four hours. Dr. O'Malley left Pine Island in March and returned in October 1986. At the time he left the beach in front of his seawall extended an average of twenty-five feet from the seawall. When he returned in October the revetment had been completed and approximately fifty-percent of Petitioner's beach had eroded. In October 1986 the beach on O'Malley's property extended two to twenty feet from the seawall. O'Malley was aware that prior to his departure the Meister property had suffered severe erosion. Believing that the construction of the revetment was the cause of the erosion of his beach Petitioner instituted this action. This was the only issue seriously contested. Petitioner's expert witness opined that the revetment acted like a groin east of Petitioner's property and caused a littoral drift, which is basically from east to west in this area, to take the sand from Petitioner's property. Further this witness opined that the longer fetch (area of open water to the north-east of Meister property) was the primary cause of the erosion of the Meister property. Historically beaches erode and accrete. Gentle waves have the tendency to cause accretion while storm waves result in seaward migration of beach sand. Photographs (exhibit 3) of Petitioner's property show typically storm wave generated erosion. The expert opinion of Respondents' witnesses that the erosion of Petitioner's property was caused by storm driven waves and was not caused by the revetment is deemed the more credible explanation of the erosion of Petitioner's beach.
The Issue Whether the Petitioner (the District) has the authority and cause to revoke Right of Way Occupancy Permit Number 9591 that permitted Respondent to erect a fence and maintain two oak trees on real property that is subject to the District's maintenance easement and, if so, whether the District has the authority and cause to demand the removal of the fence, the two oak trees, and a key lime tree from the easement area.
Findings Of Fact Respondent is the owner of a single family residence located at 7900 Southwest 173rd Terrace, Miami, Florida. The rear of Respondent's property backs up to the north right of way of the District's C-100 Canal. The C-100 Canal is one of the works of the District and is an essential part of the District's flood control plan. The C-100 Canal system supports surface drainage and flood protection to approximately 40 square miles of Dade County, Florida. The property owned by the District in fee simple includes a strip of land that is adjacent and parallel to the north bank of the canal. This strip of land is twenty feet wide and provides the District with a portion of the land it requires for maintaining the canal. On February 18, 1964, Respondent's predecessor in title executed a document styled "Permanent Maintenance Easement" that granted to the District's predecessor agency an easement on and across a strip of land that constitutes the rear twenty feet of Respondent's property. The easement area is adjacent and parallel to the maintenance strip owned by the District. The instrument granting the easement provided, in pertinent part, as follows: . . . the grantors do hereby grant, bargain, sell and convey unto the grantee . . . its successors and assigns, the perpetual maintenance easement and right for and to the use and enjoyment for canal maintenance purposes of the following described lands . . . for the purpose of ingress and egress in maintaining and operating Canal C-100, one of the works of the District . . ., and for no other purpose, it being understood and agreed that said land shall not be excavated and that no permanent structure of any kind shall be placed thereon. . . . All the covenants and agreements herein contained shall extend to and be binding upon the parties hereto and their respective . . . successors and assigns. On April 9, 1992, the District issued to Respondent Permit Number 9591 which, subject to limiting conditions, authorized certain encroachments by Respondent into the easement area and described those encroachments as follows: 4' high chain link fence enclosure encroaching 20' and 2 trees inside the fenced enclosure within the District's 20' canal maintenance easement along the north right of way of C-100 located at the rear of 7900 Southwest 173rd Terrace. Permit 9591 provided, in pertinent part, as follows: . . . The Permittee [the Respondent], by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . . . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risks of loss as a result of revocation of this permit. The District has enacted Rule 40E-6.381, Florida Administrative Code, which provides the following standard limiting conditions of Permit 9591 pertinent to this proceeding: The District's authorization to utilize lands and other works constitutes a revocable license. In consideration for receipt of that licensure, permittees shall agree to be bound by the following standard limiting conditions, which shall be included within all permits issued pursuant to this chapter. * * * (3) This permit does not create any vested rights, and . . . is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. * * * (7) The permittee shall not engage in any activity regarding the permitted use which interferes with the construction, alteration, maintenance or operation of the works of the District, including: * * * (c) planting trees . . . which limit or prohibit access by District equipment and vehicles, except as may be authorized by the permit. Among the special limiting conditions of the permit are the following: The permittee is responsible for pruning trees in order that their canopies do not encroach within areas needed by the district for canal maintenance purpose. Upon the request of the district, the permittee shall trim or prune any growth which the district has determined interferes with the district's access, operations, and maintenance. Permittee shall be responsible for the maintenance of the canal right of way within the fenced area and also for the maintenance of the right of way to a point 10 feet outside the fenced area. At the time of the formal hearing, the easement area was enclosed by the fence that Respondent erected pursuant to Permit 9591 and there existed within the easement area two live oak trees and one key lime tree. The two oak trees were approximately ten years old. The evidence did not establish whether Respondent planted (or transplanted) the two oak trees. The key lime tree was planted by Respondent after the issuance of Permit 9591. It is necessary that the C-100 Canal be properly maintained and that the District have access to the canal for routine and emergency maintenance. Following Hurricane Andrew in August 1992, the District developed a maintenance plan for the C-100 Canal. The District did not have an established canal maintenance plan for the portion of the canal relevant to this proceeding at the time it granted Permit 9591. Prior to the development of its maintenance plan, little maintenance had been done on the canal in the area of Respondent's property. The District's decision to revoke Permit 9591 and to demand the removal of the fence and trees is in furtherance of the District's right of way maintenance plan and is only part of the District's enforcement and management efforts to remove permitted and non-permitted encroachments from maintenance easements in this area of the C-100 Canal. Respondent's property has not been singled out for this action. At the time of the formal hearing, Respondent's property was the only area in the vicinity on which the District does not have 40' of unobstructed access adjacent to the canal. Respondent disputes that the District needs access to the portion of his property that is subject to the easement for the proper operation and maintenance of the C-100 Canal. Pertinent to this proceeding, the maintenance plan adopted by the District includes the use of land based equipment for erosion control and mowing of maintenance right of way areas and the routine and emergency dredging of the canal channel. The plan sets forth the anticipated maintenance activities for the area of the canal relevant to this proceeding, the type equipment that will be used, and the amount of right of way that will be required to perform the work. Emergency maintenance of the canal may be required in response to a heavy rain event since the District must be able to respond quickly if a part of the canal becomes clogged with debris. The equipment that the District will likely use for maintenance includes batwing mowers, front end loaders, dump trucks, draglines, and towboats. The District established that the 20' strip of land it owns in fee title does not provide sufficient room for the maneuvering of the heavy equipment that will be required for the routine and emergency maintenance of the canal. These pieces of heavy equipment require 40' of unobstructed land to set up and to operate safely and effectively. The District established that it needs the additional area provided by the easement on Respondent's property to properly perform its operation and maintenance of the C-100 canal. The fence that Respondent erected pursuant to Permit 9591 blocks the District's access to the easement area. Consequently, it is found that the District has cause to revoke Permit 9591 as it pertains to the fence. The District's easement entitles it to unobstructed access to the easement area and provides the District with the authority it needs to demand that Respondent remove the fence. The District established that it has cause to demand that Respondent remove the fence from the easement area. Respondent also disputes that the two live oak trees and the key lime tree that are in the easement area need to be removed even if it is found necessary to remove the fence. In their present condition, the three trees, especially the two oaks, obstruct a major portion of the easement area and interfere with the District's intended use of the easement area. Even if the trees are pruned as they grow to maturity, they will significantly interfere with the District's intended use of the easement. The bases of the oak trees are approximately 2.5' and 6.5', respectively, from Respondent's rear property line within the easement area. The two oaks are approximately the same size and are expected to grow to maturity at the same rate. At the time of the formal hearing, the canopies of the trees were approximately 20' tall and 10' wide. In five years, the canopies are expected to be approximately 25' tall and 25' wide. In ten years, the canopies are expected to be 30' tall and 30' wide. At maturity, the canopies are expected to be 35' tall and 40' wide. The District has cause to revoke Permit 9591 as it pertains to the two oak trees. The District also has cause to demand that Respondent remove the two oak trees from the easement area. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees. The base of the key lime tree is approximately 10' from Respondent's rear property line within the easement area. Although this is a relatively small tree, its presence obstructs the operation of equipment within the easement area. At maturity the canopy of the key lime tree is expected to be between 12 to 15' in height and between 12 and 15' in width. The tree trunks and the tree canopies obstruct the operation of equipment within the easement area. This interference cannot be resolved by pruning the trees. The District has cause to demand that Respondent remove the key lime tree that he planted on the easement area since that tree was not permitted by Permit 9591 and is contrary to limiting condition 7(c). The existence of the key lime tree is found to interfere with the District's intended use of the easement. The instrument granting the District the maintenance easement provides the District with the authority it needs to demand that Respondent remove the two oak trees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order that revokes Permit 9591 and demands that Respondent remove the fence, the two oak trees, and the key lime tree from the easement area within thirty days from the date the final order becomes final. DONE AND ENTERED this 6th day of July, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0049 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 30, 31, 36, 37, 38, 39, 40, and 45 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3, 8, 28, 29, 41, 42, 43, and 44 are subordinate to the findings made. The proposed findings of fact in paragraph 9 are adopted in part by the Recommended Order, but are rejected to the extent they are unsubstantiated by the evidence. The proposed findings of fact in paragraphs 23 and 24 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 26 and 27 are incorporated as preliminary matters, but are rejected as findings of fact because they are unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 32, 33, 34, and 35 are adopted in part by the Recommended Order, but are rejected to the extent the proposed findings of fact are unnecessary to the conclusions reached. COPIES FURNISHED: Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Mr. Robert A. Robinson 7900 Southwest 173rd Terrace Miami, Florida 33157 Samuel E. Pool, III, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
The Issue Is Petitioner entitled to a surface water permit modification without a maintenance requirement? Is Petitioner entitled to remove an 18-inch culvert which is required to remain in place by permit modification? Does the Division of Administrative Hearings (Division) have jurisdiction to grant the relief sought in this proceeding?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a corporation existing under the laws of the State of Florida that is in the business of, among other things, the production of citrus. Respondent is the agency of the State of Florida with the power and duty to exercise regulatory jurisdiction over administration and enforcement of surface water management systems pursuant to the provisions of Part IV, Chapter 373, Florida Statutes, and Chapter 40D-4, Florida Administrative Code, within its defined area. Sometime after Petitioner had been granted the initial surface water permit, Respondent began to receive complaints of flooding from property owners adjacent to Petitioner's property. Respondent determined that there was a mistake in the original design due to Petitioner's engineer having stated that there was no off-site flow of water into Petitioner's grove. Respondent's engineer later noted off-site in-flows of water to Petitioner's property which originated at the northeast corner of Petitioner's property. In August 1990, to correct this problem, Petitioner's engineer (Tim L. Martin of Wiles and Associates) requested a modification of Permit No. 404628.01 by proposing that an 18-inch culvert be placed in the northeast corner of Petitioner's property to address 200 acres of off-site flows. Respondent approved this modification to the original permit and the 18-inch culvert was installed. During 1995 Respondent received complaints of flooding from Richard and Janet Harvin, property owners adjacent to Petitioner's property. To address the Harvins' drainage concerns, Dino Ricciardi, an engineer with the United States Department of Agriculture Natural Resource Conservation Service, recommended a spillway. Ricciardi estimated the off-site drainage area to be 400 acres plus or minus 20 per cent. This estimation was twice the amount estimated by Petitioner's engineer at the time of the permit modification permitting the installation of the 18-inch culvert. By letter dated July 28, 1995, Respondent advised Petitioner that the existing 18-inch culvert authorized by the permit modification may be undersized and requested Petitioner's presence at a meeting in Venice, Florida, to discuss concerns of flooding of adjacent properties. By letter dated March 25, 1996, Respondent provided Petitioner with a summary of items for consideration by the parties at the meeting on March 29, 1996, when developing corrective actions for the drainage resolution plan. By letter dated April 16, 1996, Respondent admonished Petitioner for its failure to comply with agreed-upon time frames for providing information concerning a structure at the northeast corner of Petitioner's property. On April 23, 1996, Petitioner's engineer, Jerry Bowden of Kelley and Bowden, Inc., responded to Respondent's letter of April 16, 1996, with a proposal to install a 42-inch culvert with a 54-inch riser. A drawing in this proposal indicated that the existing 18-inch culvert would be removed and a 42-inch culvert with a 54-inch riser would be installed. This drawing shows the 42-inch culvert to be entirely on Petitioner's property. Jerry Bowden estimated the pre-development basin relevant to flows through the proposed 42-inch culvert at 550 acres. Jerry Bowden also stated that the upland properties drained included the Lowe property and a smattering of other properties, including a couple of acres or so of the Harvin property. On May 23, 1996, Petitioner submitted plans attached to Respondent's proposed remedial action plan which indicated that the 18-inch culvert would be removed and a spillway constructed on property located north and northeast of Petitioner's property. By June 1996 Respondent had worked out a remedial action plan to address the concerns of all parties. The plan provided for the construction of a spillway at the northeast corner of Petitioner's property and other structures that allowed the flows to pass through Petitioner's property. The remedial action plan also provided for the construction of out-flow structures at the southwest corner of Petitioner's property that were sufficient to compensate for inflows of the open spillway. The remedial action plan was approved by James Guida, Director of Respondent's Venice Regulation Department. Petitioner and its western grove owner neighbors, the Harrisons, entered into an easement which allowed Respondent to enter the Harrison's land for the construction of the remedial action plan. By letter dated July 6, 1996, Janet Harvin, a property owner that would be affected by the remedial action plan advised Petitioner as follows: You have my permission to go on our property to do the work that Southwest Fla. Water Management approved, on condition that you make sure that we have received notification (2) two days ahead of time so that we may have our cows moved from that pasture. I also would like a representative (Mitch Malone) of SWFWMD and my husband or myself present at the time of the work. We will be responsible for taking the fence down and putting it back up. (Emphasis furnished) Construction on the remedial action plan began sometime in September or October 1996. By letter dated October 16, 1996, Respondent urged Petitioner to complete work on the remedial action plan noting that neighbors were complaining of flooding. Respondent demanded that Petitioner provide a completion date of October 25, 1996. By letter dated October 30, 1996, Jerry Bowden proposed leaving the existing 18-inch culvert and installing a 36-inch culvert with a 42-inch riser in place of the 42-inch culvert with a 54-inch riser. These two culverts would replace the spillway proposed in the remedial action plan. By letter dated November 1, 1996, Respondent advised Petitioner that Respondent would have no objections to Petitioner's proposal provided Petitioner could show that the 36-inch culvert and the 18-inch culvert would have an equal or greater conveyance capacity to that of the spillway. The Respondent also requested detail on a plan or section view drawing to show the scope of the work and calculations or pipe capacity charts to show adequate capacity to handle peak rates of run-off. Respondent assured Petitioner that it would expedite its review of this material. After the November 1, 1996, letter, there was no further contact between Respondent and Petitioner concerning this matter prior to Petitioner's installing the 42-inch culvert. On November 19, 1996, the Harvins discovered that the 42-inch culvert with the 54-inch riser had been installed on their property by Petitioner's engineer, Jerry Bowden. Jerry Bowden knew prior to installing the 42-inch culvert that the culvert could not be installed entirely on Petitioner's property. While the Harvins had given Petitioner permission to go onto their property for certain work approved by Respondent set- out in the remedial action plan, the Harvins never gave Petitioner express or implied consent for the installation of the 42-inch culvert on their property before or after its installation. In fact, Janet Harvin swore out a trespass complaint against Ed Safron, Petitioner's president. Petitioner did not receive prior approval from the Respondent before installing the 42-inch culvert with the 54-inch riser on the Harvins' property. Based on his calculation of the watershed area, Jerry Bowden was of the opinion that the 42-inch culvert was sufficient to handle the off-site flows without the aid of the 18-inch culvert. However, Bowden testified there were other studies that had not been performed that could possibly produce data that would change his opinion that the i8-inch culvert was not needed to handle the off-site flows. On December 10, 1996, Petitioner applied for a letter modification of its permit for the 42-inch culvert it had previously installed on the Harvins' property without approval of either Respondent or the Harvins. This letter application described the project for which permitting was sought by referring to two previous letters dated April 23, 1996, and November 12, 1996. It was indicated in the November 12, 1996, letter that the 18-inch culvert would remain in-place unless at a later date conditions warranted its removal. Subsequent to this letter application, Respondent requested information from Petitioner concerning the maintenance issue. Petitioner did not respond to this request. By letter dated January 13, 1997, the Harvins notified Respondent that as a result of the construction of the 42-inch culvert rather than the spillway and as a result of Petitioner's failure to comply with the conditions in their letter of July 5, 1996, the Harvins would not grant Petitioner blanket permission for maintenance of the structure which Petitioner placed on their property without permission. However, the Harvins did indicate that they would allow maintenance on a case- by-case basis. By letter dated February 6, 1997, Janet Harvin advised Petitioner as follows: This letter is to revoke any and all permission that you could possibly think you have or anyone connected with you could have now, in the past, or in the future, come on our property without explicit permission from my husband or myself. On December 12, 1997, Petitioner issued the letter modification challenged herein which authorized the 42-inch culvert and required that the 18-inch culvert remain in place. The letter modification also placed the burden of maintenance of the system on Petitioner. There is insufficient evidence to show that the 42-inch culvert in combination with the 18-inch culvert is generating an excessive amount of off-site in-flow onto Petitioner's property or that the off-site in-flow onto Petitioner's property has resulted in damage to Petitioner's property or to Petitioner's citrus grove on that property, notwithstanding the testimonies of Edwood Safron or John Douglas to the contrary. Respondent's staff testified that based on their walking the watershed in December 1998, it appears that the watershed that drains to the northeast corner of Petitioner's property is between 300 and 350 acres and that the 42-inch culvert would be adequate from a conveyance standpoint. However, since the Harvins are insisting that the 18-inch culvert remain in place if there is going to be some type of agreement for Petitioner to go onto the Harvins' property to maintain the system, it is necessary that further studies be completed to determine more accurately the need for the 18-inch culvert. On November 23, 1998, Respondent invited Petitioner to apply for a permit modification if it had an expert who could state that the system minus the 18-inch culvert met rule criteria. On December 28, 1998, Petitioner filed a Modification of Permit by Letter with Respondent. There is insufficient evidence to show that the Harvins or any other upstream adjoining landowner had engaged in any unpermitted self-help drainage or that the Harvins or any other upstream adjoining landowner had materially diverted surface drainage onto Petitioner's property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a final order denying the requested modification. DONE AND ENTERED this 23rd day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1999. COPIES FURNISHED: E. D. "Sonny" Vergara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 J. Michael Rooney, Esquire Post Office Box 510400 Punta Gorda, Florida 33951-0400 Patricia J. Hakes, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
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 approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
