The Issue The issue for disposition in this case is whether the Respondents, James and Carol Rosasco, qualify for a Noticed General Permit pursuant to Rule 62-341.427, Florida Administrative Code, and a Consent to Use pursuant to Rule 18-21.005, Florida Administrative Code, for a single-family dock, on the Indian River in Brevard County, Florida.
Findings Of Fact The Rosascos (James and Carol) own a parcel of real property on the Indian River at 4680 Highway AIA in Melbourne Beach, Brevard County, Florida (4680). The shoreline on the west of the Rosasco's property is more than 65 linear feet. The parcel just south of the Rosasco's property is at 4690 Highway AIA (4690). It was recently owned by a subsidiary of Disney and was used as an executive retreat. There is an existing dock at 4680, approximately 200 feet long, close to the upland boundary of 4680 and 4690, but extending southwest. The prior owner of 4680 and the Disney subsidiary had an agreement that allowed both to use and maintain the dock. The agreement was not renewed when the Rosascos purchased 4680. The Rosascos immediately made plans for a replacement dock and submitted the application that is the subject of this proceeding. Fred and Julie Braid own the parcel just south of 4690, at 4720 Highway AIA (4720). They have an approximate 280-foot long dock which runs straight west from their shoreline. In October 1998, Disney Realty, Inc., advertised 4690 for sale by bids. In December 1998, the Braids purchased the 4690 parcel with knowledge of ownership and configuration of the existing dock at 4680. After DEP issued its intent to grant their Noticed General Permit and Consent of Use for the Rosasco's 325-foot replacement dock. The Braids challenged the decision in January 1999. The Braids' two parcels and Rosasco's property are in a shallow cove area of the Indian River. Long docks are necessary there to provide boat access and to avoid seagrasses that are close to shore. The Braids are primarily concerned that if the Rosascos are allowed to construct their replacement dock there will be no room for the Braids to place a dock on their newly-acquired 4690 parcel. The Braids' Petition for Administrative Hearing and challenge to DEP's intended action is in letter form and raises four basic concerns: the proximity of the proposed dock to 4690; whether the proposed dock would preclude the Braids' placing their own dock on 4690; possible damage to seagrasses; and problems with navigation. In order to address the Braids' concerns, the Rosascos modified their application on March 31, 1999. The revised proposal increases the length of the dock from 325 feet to 500 feet and situates the dock to run north of the existing dock and parallel to that dock (which will be removed). The revised proposal has the new dock terminal starting 25 feet north of the property line and purported riparian line. The revised proposal would result in a minimum of 50 feet clearance between the new dock and the terminal platform of the Braids' existing dock at 4720. The modification did not satisfy the Braids. At the hearing Mr. Braid used strips of paper on a drawing to show hypothetical converging of the proposed Rosasco dock and another long dock extending from the center line of his shore frontage at 4690 where Mr. Braid would like to build. DEP staff have reviewed a signed and sealed survey submitted by the Rosascos which purports to show that both the original proposal and the revised dock proposal will place the new dock at least 25 feet from the riparian rights line between the Rosasco's property and the Braids' 4690 parcel. The riparian line drawn on the Rosasco's survey is configured in the same manner as a riparian line reflected on a survey submitted by the Braids when they sought approval for their now-existing dock at 4720. That is, the surveyor simply extended the upland property line straight into the Indian River. At hearing, the Braids submitted a survey of 4690 into evidence; this one angled the northern riparian line (line between 4690 and 4680) to run parallel to the southern riparian line (line between 4690 and 4720). There are obviously various means of drawing riparian lines, and those lines are particularly complicated in a cove where the shore is curved. Without the testimony of any of the surveyors it is impossible to determine their respective bases for the conflicting depictions. Neither the administrative law judge nor the DEP has any authority to determine riparian rights lines, as this a uniquely judicial function of a circuit court. In reviewing applications for dock permits, DEP does not require a circuit court order determining a riparian rights line as that would be impractical and cost-prohibitive. Instead, DEP accepts a signed, sealed, survey depicting a reasonable suggestion of the riparian rights line. This was the process when the Braids made application for their dock in 1996, and was the process when DEP reviewed the Rosasco's application in 1998. The survey submitted by the Rosascos indicates that the dock proposal, and March 1999 revised dock proposal both situate the replacement dock at least 25 feet from the purported riparian rights line. DEP reasonably relied on that survey. Brian Poole, a former DEP Environmental Specialist II with 25 years experience with the agency, reviewed the Rosascos' first and revised dock proposals. His lengthy experience includes processing and reviewing dock applications in this area of Brevard County and he is very familiar with seagrass habitat, dock placement, and navigation issues. According to Brian Poole, and based on the surveys and aerial photographs, the Rosascos' revised proposal would not preclude the Braids' building a dock on their 4690 parcel. It could be configured, even zig-zagged, between the Braids' existing dock, and the Rosasco's proposed dock. The Rosasco's proposed dock would afford more room than the Rosasco's existing dock which is closer to the 4690 parcel. Mr. Braid testified that some boaters in the Indian River travel close to the existing docks at 4680 and 4720 and that the longer dock proposed by the Rosascos will impede navigation. The Indian River is approximately 8000 feet wide at the project site and the Intracoastal Waterway, which is the main navigational channel of the Indian River, is approximately one mile west of the project site. The proposed 500-foot dock will not come near the Intracoastal Waterway or other navigational channel. There is already at least one other 500-foot dock in the vicinity of the Rosasco's and Braids' docks. There are several other shorter docks in the area. Because the water is shallow, any boaters close to the shore or using the existing docks will have to navigate carefully at idle speed and the docks will not impede their navigation. At the hearing the Braids conceded that seagrasses were not an issue. This is confirmed by Brian Poole whose experience and knowledge of the area confirm that there are no seagrass beds or other submerged aquatic vegetation at the terminal platform or mooring area of the original proposed dock or the revised proposed dock. Seagrasses also do not appear in the aerial photographs beyond 300-feet from shore as poor light penetration inhibits their growth.
Recommendation Based on all of the foregoing, it is hereby, RECOMMENDED: The petition challenging the propriety of the general permit for Rosascos' related proposed dock and the related consent of use of sovereign submerged lands be DENIED. The Rosascos' single-family dock project as revised in the March 31, 1999, modification be authorized pursuant to the applicable general permit rules, provided that the revised dock does not exceed a total area of 2,000 square feet, subject to design criteria limitations and other conditions. The Rosascos's application for consent of use of sovereign submerged lands be GRANTED, subject to the general consent conditions quoted above and those imposed by rule. DONE AND ENTERED this 1st day of July, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1999. COPIES FURNISHED: Fred and Julie Braid 4720 Highway AlA Melbourne Beach, Florida 32951 James and Carol Rosasco 4680 South Highway AlA Melbourne Beach, Florida 32951 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues are whether Respondent, Bayhead Landings Property Owners Association, Inc.; Kimberly Lee, president; William Barthle, Architectural Review Committee (ARC) member; and Tony Kolka, ARC member, discriminated against John and Kimberly Whitt,1/ on the basis of Mr. Whitt's physical handicap in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Bayhead Landings Subdivision (Bayhead) is a deed- restricted community for which the Bayhead Landings Property Owners Association, Inc., was organized to operate and administer. Deed restrictions have been in place since 1990 and will continue in place until at least January 2031.4/ It remains unclear how many Bayhead parcels front the lake in question. There are four to five existing docks in that lake; however, none of those existing docks extend more than 80 to 100 feet into the lake. The Declaration of Covenants, Conditions, and Restrictions for Bayhead provide in pertinent part: 6.(a) For the purpose of further insuring the development of said land as a residential/agricultural area of highest quality and standard, and in order that all improvements on each lot shall present an attractive and pleasing appearance from all sides of view, there shall be a Committee consisting of no less than three (3) persons appointed to review plans and specifications, . . . . (b) The Committee reserves the exclusive power and discretion to control and approve all of the buildings, structures and other improvements on each lot or parcel in the manner and to the extent set forth herein. No residence, . . . or other structure or improvement, regardless of size or purpose . . . shall be commenced, placed, erected or allowed to remain on any lot or parcel, . . . unless and until building plans and specifications covering same showing the shape, height, size, location and orientation on the lot, floor plans, square footage, front, side and rear elevations, materials to be incorporated and exterior color schemes . . . have been submitted to and approved in writing by the Committee. * * * (d) As a prerequisite to consideration for approval, and prior to commencement of the contemplated work, a complete set of plans and specifications must be submitted to the Committee. . . . . The purpose of the ARC is to ensure that any development in Bayhead maintains the "community standards and deed restrictions" and is of the "highest quality and standard." To ensure that goal is met, the ARC is to receive a complete set of plans and specifications prior to the work starting. Mr. Whitt has a physical handicap as defined by the Act, section 760.22(7)(a). Mr. Whitt is confined to a wheelchair for mobility. The Whitts' backyard property has a significant slope downhill or drop-off towards the lake. The area between the house and the lake is muddy for a long distance, the terrain is uneven, and it is not suitable for a wheelchair to traverse. No evidence was received as to the actual distances between the house and either the drop-off area or where the terrain becomes uneven in the Whitts' backyard. The water level in the lake has been relatively low for some time; however, there is some water in it now. On September 7, 2010, Mr. Whitt submitted a proposed estimate and architectural review application to Respondents' ARC, seeking approval to construct a stationary dock on the Whitts' property (dock application). This dock application was the first received by the ARC in many years, and there is no evidence of any prior applications to build a stationary dock.5/ The dock application (Petitioners' Exhibit 3) included a three-page proposal (Proposal) from Coastal Construction; Gulfside Docks6/ that included the following "SPECIFICATIONS": Timber Piles 2.5CCA • Frame/Stringers/Caps 2" x 8" • Dock Lumber Pressure Treated .40 • Dock Bolts 5/8" HDG • SS Nails/Screws The Proposal also contained the following "STATIONARY DOCK" information: Construct new 300' x 5' dock with 20 x 16 head. We will add 2" x 2" lumber along perimeter of dock to act as bumper system Decking will be #1 pressure treated decking. Stainless Steel Screws will be used to secure deck boards The dock application did not contain any specific references to the dock being "wheelchair accessible"; however, it did contain information about a bumper system. The second proposal (Petitioners' Exhibit 10) contained the same "SPECIFICATIONS." The second proposal contained similar information regarding the "STATIONARY DOCK"; however, the language regarding the bumper system was altered to reflect "Install 2" x 2" wheel chair safety bumper around entire perimeter of dock - Approx. 663'LF. Stainless steel screws will be used as fasteners." On September 19, 2010, William Barthle, a member of the ARC, sent an e-mail to Mr. Whitt. The e-mail provided Mr. Whitt with a portion of Bayhead's deed restrictions and requested "WE NEED A DIAGRAM OF DOCKS [sic] PLACEMENT ON PROPERTY AS REFERENCED IN DOCS." On September 27, 2010, Mr. Whitt sent a plat map to the ARC with a hand-drawn dock sketched on it. The hand-drawing was not to scale and failed to provide detailed measurements of where the dock was to begin in relation to the residence or shed that were already on the property. Further, there was no rendering of what the dock itself would look like. On October 10, 2010, the ARC sent Mr. Whitt a letter requesting four specific items in order for the ARC to consider the dock application, including: Square footage of dock Height of dock The exact location of the dock on your property (distance from your house and distance from property line on each side, distance from any setback easement, or wetlands buffer boundary) A letter from Southwest Florida Water Management District approving the placement, length and location (starting/ending) of the dock Mr. Whitt's June 22, 2011, response letter (eight months later) to the request failed to provide the requested information. As of December 12, 2012, the Whitts had not provided the requested information. Mr. Barthle and Graeme Woodbrook both served on the ARC when the Whitts' dock application was submitted. Both gentlemen credibly testified that the Whitts' dock application failed to provide enough information to allow them to make a decision about it. Further, Mr. Woodbrook admitted he has some physical limitations and is sympathetic to people who have disabilities. While both men knew Mr. Whitt was confined to a wheelchair, neither knew why Mr. Whitt had to use it. Other ARC applications were admitted into evidence. These ARC applications involved: painting the exterior of a primary residence (two separate requests); landscaping in the front yard of a residence for a non-permanent 6' x 8' fish pond; replacing a playground set; resurfacing a pool deck, patio, and front porch entry; resurfacing a driveway; and extending a present screen porch. Of the three ARC applications that involved some type of new construction (fish pond, playground set, and porch extension), each contained pictures, dimensions, and/or diagrams sufficient for the reviewer to appreciate where the project was being constructed in relation to the house and property lines.7/ As of December 12, 2012, Respondent had neither approved nor rejected the Whitts' dock application. That application is simply not complete without the requested information. The dock application remains "pending," awaiting receipt of the requested information. The Whitts' position that they have provided everything that the builder has provided them is insufficient to provide the ARC with the requisite information to know where the dock will begin on the Whitts' property; how far out the dock will extend into the lake; and what the structure will look like.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed on behalf of Mr. and Mrs. Whitt. DONE AND ENTERED this 15th day of February, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 15th day of February, 2013.
The Issue This issue in this case is whether the private Respondents are entitled to recover attorneys’ fees and costs from Petitioner pursuant to Section 120.595(1), Florida Statutes.
Findings Of Fact Because the undersigned is not required or authorized to recommend a disposition on the merits of Singer’s Petition, the fact-findings that follow are limited to those necessary to determine the narrow issue whether an award of attorneys’ fees and costs is proper under Section 120.595(1), Florida Statutes. In addition, as written, the findings below assume the reader’s familiarity with the preceding Preliminary Statement. On July 22, 1999, the Owners submitted an application to the Department seeking approval to build a dock. In a letter dated January 21, 2000, which is included in File 2, the Department informed the Owners that it had reviewed their application “to determine whether [the proposed dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This January 21, 2000, letter constituted the first agency action (“First Action” or “FA”) concerning the Owners’ dock. The First Action comprised three distinct determinations (for short, “D1,” “D2,” and “D3”), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: FA-D1: The dock is exempt from the need to obtain an Environmental Resource Permit (“ERP”). FA-D2: The dock qualifies for consent to use state sovereign submerged lands. FA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the dock is deemed consistent with the State Programmatic General Permit (“SPGP”) program. As originally designed, and as approved by the Department on January 21, 2000, the Owners’ dock will be referred to herein as the “Approved Dock.” After receiving notice of the First Action, the Owners caused a “Notice of Determination of Exemption” to be published in the February 1, 2000, issue of the Palm Beach Daily Business Review. In pertinent part, this public notice stated: The Department of Environmental Protection gives notice that the [Owners’] project to construct a 125-foot by 4-foot access dock and a 40-foot by 8-foot terminal platform has been determined to be exempt from the requirements to obtain an environmental resource permit. . . . . A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida Statutes. . . . . * * * Complete copies of all documents relating to this determination of exemption are available for public inspection during normal business hours . . . at the [Department’s regional office]. (Owners’ Exhibit No. 4). Following the publication of this notice, an individual named Karrie Webb timely filed a petition with the agency challenging the Department’s approval of the Approved Dock. Her Petition for Formal Administrative Hearing was filed with DOAH on February 17, 2000, initiating Webb. v. Timothy and Hope Delong and the Florida Department of Environmental Protection, DOAH Case No. 00-0761 (the “Webb case”). The Webb case proceeded through final hearing, but before a Recommended Order was issued, the petitioner, on January 9, 2001, filed a Stipulation for Dismissal. Consequently, on January 12, 2001, the Administrative Law Judge entered an order closing the file.1 Not long after the conclusion of the Webb case, the Owners submitted a second application to the Department for authorization to build a dock. As described in this second application (which gave rise to File 3), the newly proposed dock (hereafter, the “Redesigned Dock”) differed somewhat from the Approved Dock. Most noticeably, the terminal platform of the Redesigned Dock faced north, towards Singer’s property, whereas the terminal platform of the Approved Dock had faced south. Singer and the Owners disagreed sharply as to whether the differences between the Approved Dock and the Redesigned Dock should be considered “substantial” (as Singer claims) or merely “minor” (as the Owners claim). For present purposes, however, it is neither necessary, nor would it be appropriate, to resolve that particular dispute. What is significant and should be emphasized, however, is that whether or not the Redesigned Dock differed substantially from the Approved Dock, the Owners submitted a new application respecting the Redesigned Dock as if it were a new project, and the Department acted upon the Owners’ second application as if the first one had neither been made nor approved. Thus, in a letter dated February 28, 2001, which is included in File 3, the Department informed the Owners that it had reviewed their application “to determine whether [the Redesigned Dock] qualifies for any of three kinds of authorization that may be necessary for works in wetlands or waters of the United States.” This February 28, 2001, letter constituted the second agency action (“Second Action” or “SA”) concerning the Owners’ dock (though it was, of course, the first agency action on the Redesigned Dock). Like the First Action of the previous year, the Second Action was composed of three distinct determinations (again, “D1,” “D2,” and “D3” for short), one for each of the “three kinds of [potentially necessary] authorization[s].” These determinations were: SA-D1: The re-designed dock is exempt from the need to obtain an ERP. SA-D2: The re-designed dock qualifies for consent to use state sovereign submerged lands. SA-D3: Pursuant to a “federal review” performed under an agreement between the Department and the U.S. Army Corps of Engineers, the re-designed dock is deemed not consistent with the SPGP program.2 The Owners did not cause notice of the Department’s Second Action to be published in a newspaper of general circulation. Armed with the Second Action, the Owners proceeded to have the Redesigned Dock constructed, and it now exists in fact. The existing structure will be referred to herein as the “As- Built Dock,” which, to be clear, was constructed according to the blueprint of the Redesigned Dock. After the construction began, Singer initiated this administrative litigation, the procedural history of which is summarized in the Preliminary Statement. In the course of the litigation, on May 17, 2002, the Department filed both a Motion to Dismiss and a Motion to Relinquish Jurisdiction. As the basis for its request that the undersigned relinquish jurisdiction over File 3——that is, the Department’s file supporting the Second Action, which had approved the Redesigned Dock——the Department relied upon a letter dated May 16, 2002, from the Owners’ counsel to the Department’s counsel, which contained the following pertinent text: Please accept this notice as the withdrawal of the application filed by Timothy and Hope Delong in the above matter [namely, File 3]. The Department (with the Owners’ concurrence) contended that because the Owners had voluntarily withdrawn their application, the agency had lost jurisdiction to enter a final order implementing, modifying, or rescinding the Second Action, which had preliminarily approved that application. See, e.g., City of North Port, Florida v. Consolidated Minerals, Inc., 645 So. 2d 485, 486-87 (Fla. 2d DCA 1994). The undersigned agreed that, by withdrawing their application for approval of the Redesigned Dock, the Owners had divested the Department of jurisdiction in the matter. Accordingly, the undersigned relinquished jurisdiction over File 3. In withdrawing their second application, the Owners materially changed their position and substantially modified the outcome of the most relevant preliminary agency action at issue, namely, the Second Action approving the Redesigned Dock. Indeed, by nullifying the Second Action, the Owners forfeited the only express authorization, albeit a preliminary one, that they had ever obtained from the Department for the Redesigned Dock. Thus, in other words, rather than defend the Department’s preliminary approval of the Redesigned Dock in this proceeding, the Owners elected to rely upon the First Action as a defense against any future claim that the As-Built Dock is an illegal, unpermitted project.3 The Owners’ withdrawal of their second application was intended to resolve, and in fact did resolve, matters raised in Singer’s Petition. The undersigned specifically finds, as a matter of ultimate fact, that the Owners’ change of position was substantial for purposes of Section 120.595(1)(e)3., Florida Statutes.
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2000.
Findings Of Fact The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following: The proposed extension would disrupt historical patterns of localized navigation. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.
The Issue The issue in this case is whether Petitioner is liable for retirement contributions on compensation paid Thaddeus Kmiecik in his capacity as city dockmaster.
Findings Of Fact The City of Moore Haven is located west of Lake Okeechobee alongside a waterway that connects Stuart on the east coast with Ft. Myers on the west coast. Petitioner maintains docks that boaters may use overnight, provided they pay a docking fee. A dockmaster supervises the dock and collects the docking fee from boaters. Petitioner's first dockmaster served without compensation. Whenever he became ill or went out of town, he asked Petitioner to hire someone to replace him. Pursuant to Ordinance No. 156, which went into effect in 1982, Petitioner hired replacements for the first dockmaster. Ordinance No. 156 provides that specified docking fees shall be paid by all boats docking at the city docks between the hours of 6:00 pm and 8:00 am or at other times, if the boat remains docked over three hours. However, the ordinance allows the dockmaster to enter into special contracts with commercial users, subject to the approval of City Commission. Ordinance No. 156 states that the City Commission shall appoint one or more persons as dockmaster, who shall "check all boats at the City dock both evening and morning of each day." The ordinance requires the dockmaster to record all relevant information about the boat in a log. The ordinance states that the dockmaster is "responsible seven days a week for the collection of dockage fees, giv[ing] a receipt from a numbered book, and giv[ing] copies of all receipts to the City Clerk each working day." The dockmaster must also tell the City Clerk if the docks need repairs or maintenance. The dockmaster is also required to assume at least certain responsibilities of the City Manager if the position is vacant. The health of the original dockmaster deteriorated and it became necessary to hire someone else to collect the fees. By agreement between the original dockmaster and the person doing the collections, the dockmaster allowed the collector to retain a percentage of the docking fees collected. The remainder evidently was remitted to Petitioner. When the original dockmaster died, Petitioner hired Thaddeus Kmiecik as the new dockmaster. The agreement between Petitioner and Mr. Kmiecik requires that he answer directly to the City Commission. He is to ensure that the docking fees are collected and all money taken directly to City Hall. Boaters needing reservations call Mr. Kmiecik at home. Mr. Kmiecik is responsible for his own expenses, but he earns a commission, payable monthly, of 20 percent of the collected docking fees. From 1986 through 1993, Petitioner has filed IRS Forms 1099, showing that Mr. Kmiecik has received the following "nonemployee compensation": 1986--$1936.52; 1987-- $2324.83; 1988 1992--$3457.50; and 1993--$2621.08. The arrangement between Petitioner and Mr. Kmiecik is fairly loose. He has never received any training, except how to complete the receipt book, which is provided by Petitioner. He has never received any orders as to how to perform his job, except that he is to ensure that the docks are checked nightly for boats and that all docking fees are promptly remitted to Petitioner. Mr. Kmiecik does not check the docks in the morning, and the City Commission has never insisted that he do so, even though the ordinance so requires. Mr. Kmiecik has attended only one City Commission meeting and has never reported anything to the City Commission. He can hire anyone whom he chooses to help him or perform the services when he is out of town or otherwise unavailable. He may supplement his income from the docks by performing other services, such as taking boaters to the airport, and he retains all compensation for such additional services. Although not required to do so, Mr. Kmiecik sometimes wears a city uniform when he appears at the docks. But this is the uniform for his fulltime job at Petitioner's water plant. Other persons checking the boats at night do not have a uniform. Petitioner is a participating local agency in the State-Administered Retirement System. Petitioner makes retirement contributions on Mr. Kmiecik's pay for his work at the water plant in recognition of the fact that this position is a regularly established position under the State-Administered Retirement System. However, Petitioner has always treated Mr. Kmiecik as an independent contractor for his work as dockmaster and has thus made no retirement contributions for his dockmaster compensation. The record is silent as to when Mr. Kmiecik first became employed with Petitioner in the water plant and whether he has been continuously so employed. On June 3, 1993, Petitioner answered a questionnaire acknowledging that Mr. Kmiecik worked at the city water plant also. Based on the record, June 3, 1993, is the earliest date on which Mr. Kmiecik worked at the city water plant. By letter dated January 21, 1994, Respondent informed Petitioner that Mr. Kmiecik was an employee when performing dockmaster services and demanded retroactive retirement contributions from the unspecified date of his employment in that position. By letter dated January 25, 1994, Petitioner supplied additional information and requested further review of this decision. By letter dated March 7, 1994, Respondent advised Petitioner that Respondent had determined that Mr. Kmiecik was performing the services of dockmaster in an employer-employee relationship, rather than an independent contractor relationship. The letter adds that Mr. Kmiecik is filling a "regularly established position" as an operator of the water plant and is "performing additional duties" as the dockmaster. Petitioner requested a formal hearing on the issue. Based on the relevant law, Mr. Kmiecik is an independent contractor with respect to his dockmaster services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter a final order requiring the City of Moore Haven to pay retirement contributions with respect to the compensation paid Mr. Kmiecik for services as a dockmaster, retroactive to June 3, 1993. ENTERED on July 21, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 21, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1: adopted or adopted in substance. 2-3: rejected as subordinate. 4-10: adopted or adopted in substance. 11: adopted or adopted in substance, but only to the minimal extent of the use of the receipt books. 12-18: adopted or adopted in substance. COPIES FURNISHED Steven A. Ramunni Watkins & Ramunni, P.A. P.O. Box 250 LaBelle, FL 33935 Jodi B. Jennings Assistant Division Attorney Division of Retirement Cedars Executive Center, Bldg C 2639 North Monroe St. Tallahassee, FL 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560
The Issue The issues in this case are whether the replacement of a dock by Respondent Christner in February 1993, is exempt from the requirement for a permit pursuant to Section 403.813(2)(d), Florida Statutes (1995) 1/ and Florida Administrative Code Rules 40C-4.051(11)(i) and 62-312.050(1)(i) 2/ and, if not, whether: Petitioners waived their right to request an administrative hearing pursuant to Rules 62-103.155(3)(b); Petitioner's have legal standing to challenge the agency action proposing the exemption; and the agency is estopped from reopening its prior determination.
Findings Of Fact The Department is the state agency responsible for regulating and permitting residential docks. Since February 1969, Christner has resided at 1655 Misty Dawn Lane, Merritt Island, Florida. The Christner property is adjacent to the waters of Newfound Harbor in Brevard County, Florida. Petitioners have owned property adjacent to Christner since 1990 and resided there until September 1997. Petitioners' property is located at 1665 Misty Dawn Lane. A dock existed behind the Christner property from 1972 until February 1993 (the "original dock"). After constructing the original dock, Christner sold a parcel of his land to Petitioners. After the sale, the original dock was located within 25 feet of the common boundary between the respective properties owned by Christner and Petitioners. In February 1993, Christner contracted with Mr. John Calhoun, Unique Seawall and Dock Systems, to replace the original dock. The replacement dock was completed in February 1993. The replacement dock is in the same location and of the same configuration and dimensions as the original dock. The replacement dock was constructed within the footprint of the original dock. No fill material other than piles was used to replace the original dock. Prior to October 1991, the original dock was in need of repair but was still functional. It provided access to boats moored at the dock. The original dock could still be used for fishing and mooring small boats. Between October 1991 and December 1992, the original dock was rendered non-functional. It was rendered non-functional by a discrete event. The term "discrete event" is not defined by statute or rule. A discrete event includes a storm, flood, fire, or accident. Neither the witnesses nor their records recorded a storm, flood, fire, or accident between October 1991 and December 1992. The term "discrete event" is not limited to a storm, flood, fire, or accident. It can include wind and high water. Wind and high water could have damaged the original dock without damaging newer docks in the immediate vicinity that had the benefit of better construction and were in better repair. The original dock was nearly 20 years old in October 1991 and in disrepair. The damage caused by the discrete event left several large gaps in the original dock. The damage to the original dock between October 1991 and December 1992 could not have occurred without a discrete event. Christner constructed the replacement dock in February 1993 without a permit. In September 1995, Petitioners filed a complaint with the Department. The complaint alleged that the replacement dock was constructed without a required permit. By letter dated October 4, 1995, the Department advised Christner that the replacement dock was an unauthorized single family dock. The Department stated in the letter that the original dock was non-functional in November 1992 and was repaired prior to March 1993 without proper permitting. The letter required Christner to apply for a permit. In October 1995, Christner filed an application for a Noticed General Permit and paid the application fee. After October 4, 1995, the Department determined that the dock was functional prior to its repair and exempt from permitting requirements pursuant to Section 403.813(2)(d) and Rules 40C-4.051(11)(i) and 62-312.050(1). The Department based its determination on representations by Christner and his dock builder that the original dock was repaired with planks before constructing the replacement dock. Christner and his dock builder represented that the planks spanned the gaps in the original dock so that the dock could be used to moor small boats. Christner represented that an individual could walk above the water line on the planks to the boats. On December 8, 1995, Petitioners received actual notice of the Department's determination that the replacement dock was exempt from permitting requirements because the original dock was functional prior to its replacement. An employee of the Department who investigated Petitioners' complaint notified Petitioners and Christner by telephone of the proposed exemption. The Department did not publish written notice of the proposed exemption and did not provide Petitioners with written notice of the Department's action. The Department violated Rule 62-103.155(5) by failing to provide Petitioners with written notice of their right to request an administrative hearing. In December 1995, counsel for Petitioners made several inquiries of the Department to determine how the decision to exempt the replacement dock was made and if it could be changed. Department personnel represented that the case was closed and nothing could be done to change the decision. In December 1995, counsel for Petitioners contacted the Department's office of general counsel concerning a point of entry. A Department employee represented that no review was possible. In its PRO, the Department now proposes that the replacement dock was not exempt from the requirement for a permit. The Department proposes that the original dock was not functional prior to the construction of the replacement dock and that a discrete event did not cause the original dock to be non- functional.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's challenge to the proposed exemption. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Florida. DANIEL MANRY 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 6th day of January, 1998.
The Issue The issues for determination in this case are whether Petitioner has standing to bring this action and, if so, whether Respondent Stuart Yacht Corporation is entitled to the General Permit which the Department of Environmental Protection (Department) intends to issue.
Findings Of Fact Petitioner owns Lot 4 in St. Lucie Settlement, a subdivision in Stuart, Florida. The subdivision has one border along the South Fork of the St. Lucie River. The subdivision has a finger fill that extends to the South Fork with canals on both sides. There are four lots on the finger fill, Lots 1 through 4 of the subdivision. Lot 4 is farthest from the river. On the north side of Petitioner’s property he has a dock where he keeps a boat. The dispute in this case involves the canal on the south side of Petitioner’s property. All references to “the canal” hereafter, unless otherwise noted, will be to the canal on the south side of Lot 4. Between Lots 2, 3, and 4 and the canal is a road which provides access to the lots on the finger fill. Between the road and the canal is a narrow strip of land. Petitioner owns this narrow strip of land where it corresponds with his lot lines. In other words, the southern boundary of his Lot 4 abuts the canal. However, because the canal is artificial, having been created by dredging, Petitioner has no riparian rights associated with the canal. That was the holding of the circuit court for Martin County in the litigation between Stuart Yacht Corporation and Petitioner. It was also established in the circuit court litigation that St. Lucie Settlement, Inc., which is the homeowner's association for the subdivision, owns the northern half of the canal and Stuart Yacht Corporation owns the southern half of the canal. No subdivision documents were presented to show the extent of rights granted to homeowners within St. Lucie Settlement related to the construction of docks or other uses of water bottoms that are included within the subdivision. Petitioner testified that he terminated his membership in the homeowners association three-and-a-half years ago. Stuart Yacht Corporation owns and operates a marina on the south side of the canal which includes docks over the water. At some point in the past, but before Petitioner purchased Lot 4 in 1995, Stuart Yacht Corporation constructed a dock along the north side of the canal, over the water bottom owned by St. Lucie Settlement, Inc. The dock along the north side of the canal has been used for mooring large yachts. The portion of the dock that ran along the boundary of Lot 4 was recently removed by Stuart Yacht Corporation following the rulings in the circuit court. The balance of the dock along the north side of the canal would be removed as a part of the proposed permit that Petitioner has challenged. In addition to removing the dock along the north side of the canal, the proposed permit authorizes Stuart Yacht Corporation to construct a new dock that is four feet wide and runs 150 feet along the property boundary in the center of the canal. No part of the proposed new dock would be on the property of St. Lucie Settlement, Inc. St. Lucie Settlement, Inc., did not challenge the proposed permit. In his petition for hearing, Petitioner alleged that the proposed new dock would cause the following injuries to his interests: interference with ingress and egress to Petitioner’s shoreline; interference with Petitioner’s desire to obtain a permit in the future to construct a dock or to “harden” the southern shoreline; and interference with Petitioner’s riparian rights. Petitioner’s testimony about his past use of the canal was inconsistent. He said he moored his boat in the canal once in 1995. He said he boated into the canal to fish on several occasions. He said that (at least twice) when he attempted to enter the canal by boat, he was denied access by representatives of Stuart Yacht Corporation. However, in a deposition taken before the hearing, Petitioner said he had never attempted to use the canal. The only testimony presented by Petitioner to support his claim that the proposed permit would interfere with his navigation, fishing, and desire to obtain a dock permit in the canal was the following: I couldn’t get a boat in there with that proposed dock in the center line of the canal right on their side of the canal. It would be 150 feet long. It would be a huge Wall of China. My neighbor and I couldn’t get to our shoreline. The evidence presented was insufficient to prove that Petitioner would be unable to navigate into the canal in a small boat or to fish in the canal if the proposed dock is constructed. The evidence was also insufficient to prove that Petitioner would be unable to construct any kind of dock for any kind of watercraft if the proposed dock is constructed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss the petition for hearing based on Petitioner's failure to prove standing, and issue the proposed permit to Stuart Yacht Corporation. DONE AND ENTERED this 20th day of February, 2008, 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 20th day of February, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Paul B. Erickson, Esquire Alley, Maass, Rogers & Lindsay, P.A. 340 Royal Poinciana Way, Suite 321 Palm Beach, Florida 33480 Amanda Gayle Bush, Esquire Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399 Guy Bennett Rubin, Esquire Rubin & Rubin Post Office Box 395 Stuart, Florida 34995
The Issue The issues are whether Respondent Thidadeau is entitled to a Noticed General Permit, pursuant to Florida Administrative Code Rule 62-341.427, and a Letter of Consent, pursuant to Florida Administrative Code Rule, to construct a single family dock in the central embayment of the Loxahatchee River in Palm Beach County.
Findings Of Fact By Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit filed August 14, 2002, Respondent Paul Thibadeau (Applicant) requested a Noticed General Permit (NGP) and Letter of Consent for a single-family dock to be constructed at his home located at 129 River Road, Palm Beach, Florida (Application). The dock would extend from the southern shore of the Central Embayment of the Loxahatchee River, which is Class III waterbody that is also an Outstanding Florida Water and Aquatic Preserve. At the time of the filing of the Application, Applicant's contractors and Respondent Department of Environmental Protection tried various alignments to avoid impacts. Petitioner Board of Commissioners of Jupiter Inlet District (District) is an entity created by the Legislature to operate and maintain the Jupiter Inlet and maintain and preserve the Loxahatchee River. The District's jurisdiction covers the Central Embayment and Applicant's property. The District employs an engineer to inspect the Central Embayment for navigational hazards. Intervenors Andrea Cameron and Jeffrey Cameron and Douglas Bogue reside in shoreline property to the west of Applicant's property. The Camerons and Mr. Bogue live on the same cove that the west side of Applicant's property abuts. Mr. Bogue's parcel is the second parcel to the west of Applicant's parcel, and the Camerons' parcel is the third parcel to the west of Applicant's parcel. Intervenors swim, fish, birdwatch, boat, and otherwise use the area in which Applicant would construct the dock and platform. Applicant has owned his property for a little over seven years. Applicant's property consists of nearly 1.5 acres of land that forms a peninsula jutting into the Central Embayment from the southern shoreline near the Alternate A1A bridge, which marks the east end of the Central Embayment. Applicant owns 1000 linear feet of shoreline. The proposed dock and platform would be constructed on the northwest side of Applicant's property. Applicant currently owns a dock, measuring five feet into the water by 67 feet along the shoreline, in the canal on the east side of his property. The water depth at this dock is only four inches at the lowest tides and less than one foot at mean low water. Seagrasses--mostly shoalgrass and threatened Johnson's seagrass--grow in the vicinity of this dock, and it is a reasonable inference, given the nearby seagrass beds, prevailing shallow depths, shading effect of the present dock, and the relocation of prop and boating disturbances, that seagrass would recolonize the area of the existing dock, after it is removed. Applicant has agreed to amend either the NGP or Letter of Consent to condition the approval of the construction and use of the proposed dock upon the removal of the existing dock. The Application describes a dock that is 270 feet long and four feet wide. At the end of the dock is a 160 square-foot terminal platform. The diagram shows the dock running 110 feet due north from an upland point that is ascertainable only approximately by reference to a concrete sidewalk and mangrove fringe depicted on the drawing. The dock then turns to the northwest and runs 160 feet to the terminal platform, which measures 5.3 feet by 30 feet. Boat-lift pilings are waterward of the waterward edge of the platform. The diagram depicts approximations of water levels, at mean tide, along the dock. The shorter run of the dock ends in water two feet deep, at mean tide. The longer run crosses a long sandbar and terminates between the 3.5- and 4-foot contours. A cross-section in the Application shows mean high water at about 1.0 feet (presumably National Geodetic Vertical Datum, or NGVD) and mean low water at about -0.5 feet NGVD. The cross-section reveals that the waterward edge of the terminal platform is at almost -3.33 feet NGVD and the landward edge of the terminal platform is at about -3.2 feet NGVD. This means that, at mean low water, the water level would be a little more than 2.75 feet deep at the waterward edge of the terminal platform and about 2.75 feet deep at the landward edge of the terminal platform. The pilings, which are waterward of the waterward edge of the terminal platform, are at -3.5 feet NGVD. This means that, at mean low water, the water level would be about 3 feet deep at the most waterward pilings. However, the second slip, which mostly runs along the end of the dock, not the terminal platform, is in shallower water. According to a drawing that is part of the Application, the waterward end of this slip is at the same depth as the landward end of the terminal platform, so it would be in about 2.75 feet of water at mean low water, and the landward end of this slip is at -2.0 feet NGVD, so it would be in about 1.5 feet of water at mean low water. Disagreeing with this drawing, Applicant Exhibit 61 indicates that the shallowest water depth at the second boat slip is at least two feet at mean low water. Although the scale of District Exhibit 62 prevents a precise determination, District Exhibit 62 seems to agree with this value, as well as other landward values, contained in Applicant Exhibit 61. The superior detail of both of these exhibits, as compared to that of the drawing accompanying the application, compels a finding consistent with the deeper water levels reported on Applicant Exhibit 61 and District Exhibit 62. Thus, the water depth, at mean low water, is at least two feet at the second boat slip. DEP environmental scientists visited Applicant's site twice before issuing the permit and snorkeled the area proposed for the dock to find the location that would result in the minimum impacts. On the first visit, the DEP scientists did not record the tide, but, in the second visit, they snorkeled the area at mean low water. After DEP approved the permit, its scientists snorkeled the site a third time, also at mean low water. Applicant has worked closely with DEP at all stages of the permitting process. In fact, early discussions resulted in several different alignments and locations for the proposed dock. After DEP's environmental scientists determined for themselves the location of the seagrass beds in the affected area, Applicant settled on a location and alignment acceptable to the DEP scientists and revised the application (Revised Application). The Revised Application locates portions of the dock deck over some seagrass beds, but adds restrictions, beyond those normally imposed on docks built in Aquatic Preserves, to reduce or eliminate the impacts of the dock on these seagrass beds. The Revised Application narrows the dock deck by one foot to three feet, replaces solid decking with grated decking for the first 200 feet from the shoreline, adds handrails for the first 200 feet from the shoreline, and raises the elevation of the dock deck from five feet to seven feet above mean high water for the first 200 feet from the shoreline. The Revised Application also changes the width of the terminal platform from 5.3 feet to 6 feet and its length from 30 feet to 25 feet. The Revised Application clearly identifies two boat slips: one on the waterward side of the long side of the terminal platform and one perpendicular to the first slip, along the north side of the end of the dock deck. Lastly, the Revised Application reduces the dock deck from 270 feet to 250 feet to the shoreline. The proposed alignment of the dock passes between two relatively small seagrass beds immediately offshore of the northwest side of Applicant's property. The cove contains a large seagrass bed, mostly confined to water depths of less than 1.5 feet at mean low water. A little more than 50 feet of the dock passes over the eastern edge of this large seagrass bed, and the most waterward 40-50 feet of the dock passes over bottom that is uncolonized by seagrass. The seagrass that is traversed by the dock is mostly confined to the long sandbar that the dock would cross. Petitioner presented several alternatives to the present alignment. These are depicted in District Exhibit 79. Petitioner and its witness ultimately selected Alternative F, which would be a shorter dock running to the northeast off the northern tip of Applicant's property. Passing over little, if any, seagrass, this dock would terminate in a hole that is three feet deep at mean low water. However, Alternative F provides Applicant with little better access than he has at present. The northern route to the channel requires several turns and passes over much seagrass. The longer eastern route runs over 600 feet in a narrow, turning channel that contains only 1.5-2.0 feet of water at mean low water. This side of Applicant's property is more exposed to currents and winds than the west side abutting the cove, so accurate navigation of a vessel with the engine trimmed partly up would be more difficult. Channels, especially shallow ones, shift over time and shoal up, especially given this tendency within the Central Embayment. The Central Embayment is a shallow waterbody prone to shoaling due to sedimentation. The main channel through the Central Embayment generally runs along the north shoreline of the Central Embayment, although it runs in a more central location as it approaches the Alternate A1A bridge at the east end of the Central Embayment. Applicant's property, which is close to the A1A bridge, is relatively close to the main channel. A shallow area with interspersed seagrass beds separates Applicant's property from the main channel. Applicant operates a 24-foot boat with a 200- horsepower outboard motor. The boat requires 12 inches of water to float with the engine up and 24 inches of water for the skeg and prop to clear the bottom with the engine down and the boat operating at idle or low speed. To ingress or egress the existing dock, Applicant can operate his boat only within two hours of high tide. To reach the main channel, Applicant must navigate poorly marked, local channels. The longer local channel runs east from Applicant's property and requires several turns. The shorter local channel runs north of Applicant's property and enters the southern access channel at a point near to its junction with the main channel. The southern access channel is an important channel in the Central Embayment, whose shoreline has been densely developed. A long sandbar runs through the center of the Central Embayment. Rather than navigate to the west of the sandbar, most boat operators coming from the south shoreline take the southern access channel, which shortens the time it takes for them to leave the Central Embayment. A mangrove island at the east end of the long sandbar is located immediately north and west of the southern access channel, just west of its junction with the main channel. Directly across from the mangrove island, in a southeasterly direction, is the northwest side of Applicant's property, from which the dock would extend, running toward the southern access channel. Boating traffic in the southern access channel may reach over 100 trips during a 10-hour period on weekends. In the vicinity of the proposed terminal platform, two large, privately installed pilings exist nearly in the center of the southern access channel. The closer of these pilings would be about 95 feet from the proposed terminal platform. One of the pilings marks the junction of the southern access channel with the main channel. The closer piling is between the proposed platform and the mangrove island to the northwest. Boats operate to the south and east of these pilings, typically at planing speeds of at least 20 miles per hour. In the vicinity of the proposed terminal platform, the southern access channel is 120-150 feet wide, and the waterward edge of the platform is about 70 feet from the center of the channel. The bathymetry in the vicinity of the proposed platform reduces the navigational hazard posed by the proposed project. The -3 and -4 feet NGVD contours run parallel along the southern edge of the southern access channel in the vicinity of the proposed terminal. Both contours, on either side of the proposed terminal, take sharp turns landward 25-50 feet on either side of the proposed platform. The effect of this bathymetry is to create a sort of submerged cove for the proposed terminal platform, which is protected from passing boat traffic from the fact that these contours are generally 25-75 feet further waterward on either side of the platform. For instance, at mean tide, boaters approaching the area of the platform would presumably wish to stay in water deeper than three feet, so they would unlikely find the platform to be a navigational hazard. Additionally, an imaginary line extending from the takeoff point of the dock on Applicant's shoreline, along the dock, to a point on the opposite shoreline would run about 13,800 feet. This line would run just east and north of the mangrove island described above. The drawing of riparian lines at this location is much more difficult due to the irregular shoreline and the orientation of the southern access channel. Originally, Applicant proposed a riparian line that ran from the westernmost extent of his property, which is located at the end of the waterway running along the west side of the property. Dutifully running this line perpendicular to the orientation of the southern edge of the southern access channel, Applicant deprived a corner of his neighbor's property of any riparian rights at all. During the hearing, Applicant redrew proposed riparian lines. The appealingly named, "Equitable Allocation" line does more justice to the neighbor by not crossing his property. Instead, this line runs roughly along the middle of the canal- like waterway on the west side of Applicant's property and, at the mouth of this waterway, turning to the northwest to run perpendicular to the southern edge of the southern access channel. The problem with the "Equitable Allocation" line offered by Applicant emerges when it is considered in broader scale, sufficient to encompass not only Applicant and his neighbor to the immediate west, but also that neighbor's neighbor to the immediate west. The "Equitable Allocation" line does no equity to the riparian access of one of the two landowners to the west of Applicant. However, the task in this case is not to draw riparian lines, but to determine whether the proposed dock or platform is within 25 feet of another landowner's riparian line. Applicant Exhibit 62 draws the 25-foot offset line. If the riparian- rights line runs perpendicular to the orientation of the southern access channel (the so-called "Equitable Allocation"), the terminal platform and dock are offset by more than 25 feet from the line. If the riparian-rights line extends property lines without regard to the orientation of the channel, then the platform, but not the dock, would be within the 25-foot offset. As noted in the Conclusions of Law, case law teaches that the location of the channel and property boundaries receive consideration in establishing riparian rights. When based on the larger-scale map of Applicant Exhibit 63, any equitable application of these factors would not result in the establishment of a riparian rights line within 25 feet of the proposed terminal platform or dock. The proposed dock and platform would impact the aesthetic enjoyment of nearby landowners and others using the waters of the Central Embayment. Swimmers and sunbathers set up on the sandbar and throw balls and flying disks. The proposed dock would divide the sandbar into two sections of about 170 feet and 100 feet. The impact of the dock, with its pilings spaced at ten-foot intervals, is unclear on these recreational users, as it is on users of canoes and kayaks, which also occupy these waters. The record does not portray a high-energy, strong-current environment in this area, which is essentially at the mouth of a small cove, so it is difficult to infer that typical currents will create unsafe conditions for swimmers, kayakers, or canoeists around the pilings. Likewise, the record does not establish the net impact of the dock and platform on fish, birds, and other wildlife using the area. The platform covers submerged bottom that is uncolonized by seagrass, and, given its coarse sand and shell hash, as well as the water depths and water clarity, this bottom is unlikely ever to be colonized by seagrass. The portion of the dock that traverses seagrass will shade this vegetation, but the effect of shading is mitigated by the seven-foot elevation of the deck, translucency of the decking material, and near north-south orientation of the deck. The construction of the takeoff of the deck will not require significant alterations to the existing mangrove fringe. The issue of cumulative impacts is not that the average dock in the Central Embayment is 80 feet, and the proposed dock is over three times longer. Nor is it that only two docks on the southern shoreline of the Central Embayment would equal or exceed in length the length of the proposed dock, and one of these two docks serves a planned unit development. The length of the dock is subordinate to the depth of the water to be reached by the dock. The more relevant issue, as to cumulative impacts, is that the proposed dock would extend to water whose depth is -3.5 feet NGVD, and the majority of docks in the Central Embayment terminate in water at least one foot shallower. An estuary whose urbanized shoreline appears almost condominiumized in aerial photographs, the Central Embayment will undergo shoreline development to match whatever DEP permits in its most generous permitting decisions. However, a close examination of District Exhibit 62 reveals numerous examples of docks or platforms terminating in -3.5 or even -4.0 feet NGVD, so the potential of the Letter of Consent generating cumulative impacts, strictly in the termination depths of docks, is small. The most relevant concern, as to cumulative impacts, is the potential for the construction of docks where no docks presently exist and the number of such docks that would need to extend 250+ feet to reach water depths comparable to those reached by the proposed dock and platform. Perhaps landowners abutting such extensive stretches of flats have been discouraged from trying to obtain permits for such lengthy structures. Perhaps Applicant himself was emboldened to seek the present NGP and Letter of Consent due to the permitting of the other single- family dock of comparable length on the southern shoreline. The problem as to this aspect of cumulative impacts is that the record does not support findings as to the number of littoral parcels without docks and the number of such parcels that would require docks of 250+ feet to reach the depths involved in this case. These cumulative impacts, if any, are too speculative to assess. Thus, the analysis of cumulative impacts in this case is necessarily restricted to consideration of the impacts of some additional pressure to construct docks to one-foot deeper water than has historically limited docks and the accumulation of additional impacts to resources, such as seagrass, or recreational uses, such as boating and swimming, from an authorization to build the proposed dock and platform. The record does not support findings of significant adverse cumulative impacts from this proposed activity. Moreover, the elimination of 335 square feet of shallow-water dock and the possible recolonization of seagrass, including threatened Johnson's seagrass, mitigate any cumulative impacts and limit or even eliminate the precedential value of the permitting decisions in this case.
Recommendation It is RECOMMENDED that the Department of Environmental Protection: Grant the Noticed General Permit. Grant the Letter of Consent upon two conditions: a) the prohibition against any boat mooring to the slip for any period of time, if the boat requires more than two feet of water with its engine in normal operation position and the boat operating at idle or slow speed; and b) the removal of the existing dock prior to the construction of the new dock and platform. DONE AND ENTERED this 25t day of July, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2005. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Greg Munson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kevin S. Hennessy Lewis, Longman & Walker, P.A. SunTrust Building 1001 3rd Avenue West, Suite 670 Bradenton, Florida 34205 Thomas F. Mullin Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Marcy I. Lahart Marcy I. Lahart, P.A. 711 Talladega Street West Palm Beach, Florida 33405 John S. Yudin Guy & Yudin, LLP 55 East Ocean Boulevard Stuart, Florida 34994 Toni Sturtevant Assistant General Counsel Christine A. Guard Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
