Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18, 19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded. Findings of fact drawn from that evidence are set forth below. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/ In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application for a water resource permit. DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Laven owns a parcel of land at 1500 Bay View Drive, Sarasota, Florida on which he has a home. The property is approximately 180 feet by 100 feet, and is located on Sarasota Bay. A seawall has been constructed along the shoreline. Respondent Cloud owns a parcel of land at 2610 Cardinal Lane, Sarasota, Florida that is contiguous to Respondent Laven's property at 1500 Bay View Drive, Sarasota, Florida that is also located on Sarasota Bay. Approximately 100 feet of the property is located along the shoreline of Sarasota Bay. Sarasota Bay is currently designated as a Class III outstanding Florida waterbody. On or about June 28, 1991 Respondents Laven/Cloud filed an application to modify existing permit number 581885033 which had been previously issued to Respondent Laven for construction of a private dock consisting of an access pier 210 feet by 5 feet, with a terminal platform 20 feet by 4 feet on Laven's property located at 1500 Bay View Drive, Sarasota, Florida. Previous to the modified application being filed by Laven and Cloud, Laven had attempted to modify permit no. 581885033 by reducing the access pier from 210 feet by 5 feet to 175 feet by 5 feet. The Department concluded that the dock, as modified, would not reach water of sufficient depth to prevent damage to the seagrass, and considered this a major modification requiring a new application. Therefore, the Department denied the modified application, and Respondent Laven did not file a new application. The application filed by Laven/Cloud on or about June 28, 1991 to modify existing permit 581885033 proposed to construct a private dock on the property line between Laven's and Cloud's property. The private dock was proposed to consist of an access pier 4 feet by 210 feet, with two terminal platforms, each 25 feet by 6 feet. After review of the application to modify permit 58188503 the Department issued a Notice of Intent to issue a permit for the proposed construction of the private dock on August 2, 1991. The Notice of Intent included 18 specific conditions to which the proposed dock would be subject. Those relevant to this proceeding are as follows: 1) . . . . If historical or archaeological artifacts, such as Indian canoes, are discovered at any time within the project site the permittee shall immediately notify the district office and the Bureau of Historic Preservation, Division of Archives, History and Records Management, R.A. Gray Building, Tallahassee, Florida 32301. Turbidity screens shall be utilized, secured, and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Double turbidity screens, staked hay bales, staged construction and other additional measures shall be used as necessary to insure compliance with water quality standards in Chapter 17-3, Florida Administrative Code. During construction, all areas of exposed soils shall be effectively isolated from waters of the state to prevent erosion or deposition. All exposed soils shall be stabilized with an appropriate ground cover within 72 hours of attaining final grade. 5) . . . . 6) . . . . The applicant is not permitted to conduct or construct the following activities or facilities in conjunction with this dock structure: Fish cleaning facilities. Fuel hoses or fueling facilities. The mooring of boats or vessels for live aboards. The mooring of boats utilized for com- mercial purposes such as fishing, scuba diving, boat rental, etc. Picnic tables or benches. Storage sheds or enclosed structures. Covered boat slips. Sanitary facilities. The rental of boat slips or mooring space. Turbidity screens shall effectively encom- pass each piling during installation and remain in place until any generated turbidity has subsided. Turbidity screens shall effectively encompass an area around each piling not to exceed 7 square feet. Any watercraft which may be utilized during construction activities shall only operate/moor in waters of sufficient depth so as not to cause bottom scour or prop dredging. The access pier shall be elevated a minimum of 5 feet above mean high water for the most waterward 150 linear feet of the access pier. The most waterward 150 linear feet of the access pier shall be constructed with the slated[sic] design indicated on sheet 4 of permit submittals. The most landward 60 feet of the access pier shall be constructed utilizing the 2 x 6 decking. The permittees shall construct 100 linear feet of rip rap along the existing vertical seawall as indicated on sheet 1 of permit submittals. Rip rap material shall consist of natural boulders or clean concrete rubble six inches to three feet in diameter or in average dimensions. The slope of the rip rap shall be no steeper than 2H:1V. There shall be no reinforcing rods or other similar protrusions in concrete rubble and all rubble or boulders shall be free of attached sediments. The rip rap shall be install concurrently with the construction of the permitted dock. The permittees shall grant the Department a conservation easement over the shorelines of the two subject parcels. A conservation easement shall be established over the seawall cap and 2 feet waterward of the seawall for the entire length of the seawall to 1500 Bay View Drive (Lots 1, 2, 3, 4, 11, 12, 13, and 14 Block Q, Bay View Heights Addition). A conservation easement shall also be established between the limits of the mean high water linear and the landward extent of waters of the State (Pursuant to Section 170301.400[sic] FAC) for the entire length of the shoreline at 2610 Cardinal Place (Lots 5, 6, 7, 8, 15, 16, 17 and 18, Block Q, Bay View Heights Addition). 14) . . . . 15) . . . . The following seagrass monitoring program shall be implemented and adhered to: Within 45 days of the issuance of this permit (and prior to initiation of dock con- struction) the permittee shall establish a preconstruction monitoring program consisting of one meter square grids within the area specified on sheet 1 A of permit attachments. A minimum of 10 random one meter square plots shall be selected within each area A and B and also along the centerline established along the length of the dock. The permittee shall measure percent areal coverage of seagrasses within each plot within the grid system. Each of the plots shall be monitored as specified in above a minimum of two times per year (July and January) over a three year monitoring period subsequent to dock construction. Reports shall include date, water depth, water clarity, species of seagrasses observed, percent areal coverage and representative height of seagrasses within each plot. Moni- toring reports shall be submitted to the Department within 30 days of the monitoring event. The first monitoring event shall occur during the first January or July (which ever occurs first) subsequent to completion of dock construction. Hand railing shall be constructed along the entire length of the access pier (on both sides). The temporary or permanent mooring of watercraft shall only occur at the terminal platform. 18) . . . . By imposing special conditions 3, 4, 8 and 9 it will ensure that the dock construction will have a temporary minimal impact on the water quality, and there will be no permanent water quality impacts as a result of this project. If this permit is not issued, it would be possible for each of the applicants to build an exempt dock on his property which would require two accesses or swaths through the seagrass beds. An exempt dock (500 square feet or less) may result in the dock terminating in seagrass beds and in water of insufficient depth to prevent damage to the seagrass beds or to prevent bottom scour or propeller dredging. The project site consists of a shoreline with a shoal area where Shoal grass (Halodule wrightii) and Turtle grass (Thalassia sp.) are growing, with the Turtle grass being the predominant species to a point further waterward to where there is a significant change in the water depth. Such point being approximately at the termination of the proposed dock. Beyond this point the seagrass beds are scattered. Therefore, any dock shorter than approximately 210 feet would terminate in the main seagrass beds and result in the seagrass beds being routinely disrupted or damaged by power boats. The proposed design of the most waterward 150 linear feet of the deck portion of the proposed dock has less solid surface than a normal deck, and, along with the proposed height of the most waterward 150 linear feet of the proposed dock, would allow substantially more light to penetrate the area and provide sufficient light for healthy existence of the seagrasses. The proposed impacts consists of disturbance of the seagrass beds. Requiring railing along the entire access pier on both sides will preclude mooring of motor craft in the area of the seagrass and in water depths insufficient to prevent damage to the seagrass, and to prevent bottom souring and propeller dredging. Because of the length, height and design of the dock there would be minimal impact, if any, on the seagrass beds. The design of the dock will ensure that the project will not adversely affect the functions being performed in the area intended for the dock. The conservation easement will ensure that a feeding ground for wading birds will be maintained, and along with the dock design will minimize any impacts that the proposed dock will have on the fish and wild life habitats. The construction of the 100 linear feet of rip rap along the existing vertical seawall on Sarasota Bay along Laven's property will reduce scouring and erosion at the base of the seawall, and provide beneficial habitat which will be an improvement of the seawall alone. There may be minimal impacts on recreation in that it may impose some inconvenience for those fishing and those attempting to access the bay for sailing. There may be some minimal impact on navigation in that the proposed dock will entend out approximately 35 feet further than any other existing dock in the area but due to the shallow water in this area boats presently have to travel at a reduced rate of speed, and for this reason the proposed dock would not adversely affect navigation. However, this should be mitigated by requiring lights on the dock as a safety feature. The project will not adversely affect the fishing, or recreational values, or marine productivity in the vicinity of the project. The proposed project will not adversely affect the public health, safety, or welfare or property of others. The proposed dock will be a permanent structure, notwithstanding that regular mainentaince will be required. The Respondents Laven/Cloud have provided reasonable assurances that the proposed project will be clearly in the public interest, notwithstanding the minimal impact it may have on recreation and navigation. Particularly, when all Special Conditions are considered, specifically Special Conditions 12 and 13 pertaining to rip rap along the vertical seawall on Laven's propertry and the granting of the Conservation Easement over both Laven's and Cloud's shoreline.
Recommendation Accordingly, in view of the above Findings of Fact and Conclusions of Law, it is, therefore, recommended that the Department enter a Final Order issuing Permit Number 581885033 to Respondents Robert Laven and John Cloud as set forth in the Department's Intent To Issue dated August 2, 1991 provided that the grant of the subject permit should include the general and specific conditions in the Intent To Issue as well as the condition requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above. RECOMMENDED this 21st day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3988 The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Both paragraphs regarding Respondent Cloud's testimony at the hearing go to his credibility as a witness and are not stated as a finding of fact and are therefore rejected. Paragraphs 1 and 2 regarding Rose Poynor's testimony appear to be supported by documents or testimony not received at the hearing and are therefore rejected. Paragraph 3 regarding Rose Poynor's testimony is either immaterial or irrelevant or goes to her credibility as a witness or is supported by facts not in the record. The paragraph regarding Roy R. Lewis' testimony goes to his credibility as a witness and is not a statement of fact. Paragraphs 1 and 2 regarding Robert Patten's testimony is more of a restatement of his testimony than a finding of fact. But in any event, are neither material or relevant. The next to the last paragraph is not supported by the record but see Finding of Fact 20. The last unnumbered paragraph is not supported by the record. See Finding of Fact 24. Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (1, 2, 3); 2 (4, 6); 3 (5); 4 (11); 5 (11); 6 (13); 7 (7, 8); 8 (7, 8); 9 (7, 8); 10 (7, 8); 11 (7); 12 (7); 13 (12, 15); 14 (7); 15 (12); 16 (7, 14); 17 (15); 18 (7, 16); 19 (17); 20 (7); 21 (7); 22 (7, 18); 23 (18); 24 (20); 25 (7, 17); 26 (23); 27 (19); 28 (21); 29 (22); 30 (7); 31 (17); 32 (7); 33 (9); 34 (9, 10); 35 (7, 8, 11, 12, 14-22); and 36 (7). Rulings on Proposed Findings of Fact Submitted by Respondents Laven and Cloud Respondents Laven and Cloud have divided their findings into two groups (1) Findings of Fact and (2) Ultimate Findings. Since the Findings of Fact are duplicative of the Ultimate Facts or are only restatements of the witnesses testimony, I will respond only to the Ultimate Facts. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (1); 2 (3); 3 (2); 4 (4, 6); 5 (3); 6 (7, 12); 7 (7, 17, 18); 8 (7); 9 (7); 10 (7, 24); 11 (7, 24); 12 (22); 13 (17); 14 (is a duplication of paragraph 13); 15 (20); 16 (21) and 17 (16). COPIES FURNISHED: Alan S. Dorrill 1726 Floyd Street Sarasota, FL 34239 F. Craig Richardson, Esquire Icard, Merrill, Cullen, Timm, Furen, & Ginsbrug, P.A. 2033 Main Street, Suite 600 Sarasota, FL 34237 Carol Forthman, Esquire Maureen A. Eggert, Certified Legal Intern 2600 Blairstone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard. J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge. DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William L. Hyde, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls 14 West Jordan Street Pensacola, Florida 32501 Felo McAllister 2706 Blackshear Pensacola, Florida 32503
Findings Of Fact On October 25, 1990, Respondent Eckert applied to Respondent DER for a permit seeking authorization to construct a 280-foot single-family recreational dock at 5766 Red Cedar Street in Pensacola, Escambia County, Florida. The dock would extend waterward from that address and lot into Russell Bayou in Escambia County, Florida, a class III water of the State. When objections were filed to the original application for the 280-foot dock, Respondent Eckert amended his permit application and now requests a permit to build a 265-foot dock, meaning that the dock would extend 265 feet waterward from the mean high water line and, therefore, the boundary of the Respondent/applicant's property. The Petitioners are all adjacent or nearby land owners who object to the project, pursuant to Section 403.918(2), Florida Statutes (Supp. 1990), asserting that the project is contrary to the public interest in terms of recreational values or navigation. Russell Cove is a relatively-shallow body of water enclosed on three sides, with access to open water on its western end. Its depth fluctuates somewhat. It is tidally influenced, including lunar tides, which cause shallower-than-normal low water. The bottom of the cove is sandy with areas of rolling contours and shifting sandbars. The deepest points in the vicinity of the proposed dock vary between four and five and one-half feet. A 300-foot dock exists on the outward or westward end of Russell Cove. The channel widens to such an extent by the time it reaches the vicinity of that dock, however, that a 300-foot dock poses no navigational problem to boats using the interior of the cove. The applicant contends that the Petitioners who live eastward and "up the cove" from him have plenty of room to navigate past his proposed dock because, as his chart indicates, an apparently wide channel of slightly deeper water traverses the cove, waterward of all the docks in the cove, including that which he proposes to construct, with sufficient width beyond the end of his proposed dock to allow any boats which typically use the cove to navigate by it safely. The Petitioners who live on the interior of the cove, eastward of his proposed dock, and who would have to navigate by it, contend, however, that the safest route for them to navigate is immediately in front of or intersecting the tip of the location of the proposed dock. Ms. Bass testified for Petitioner Wittig. Her boat is equipped with a depth finder, and over the years of navigating in and out of the cove, she has learned that the supposedly wide channel referenced by the applicant is not actually a uniform wide, deep channel. Rather, there are sandbars occurring at various intervals, which sometimes shift in location, which point into the channel from the more southerly part of it, thus constricting it so that the safest passage is really a much narrower route closer to the ends of the docks and the proposed dock jutting into the channel. The safest passage is a slender route directly intersecting the tip of the location of the proposed dock. Ms. Bass established that there is already a narrow margin of maneuverability in the cove due to the intermittently shallow water, and, in stormy or foggy weather, the extra length of the dock might be unsafe. Petitioner Ericson has a non- motorized sailboat which must tack back and forth to enter or leave the cove when sailing into the wind. Thus, he needs a wide area to navigate in or out of the cove under certain prevailing wind conditions. Although DER's expert witness, Mr. Harp, supported the relative depth measurements established by the applicant (adjusted for seasonal tidal variations), he conceded that he had not measured an east/west line in the sandbar area described by Ms. Bass on the southerly side of the channel and jutting into the channel. Rather, he measured a north/south line and an east/west line in the route which Ms. Bass indicated she uses close to the docks and the proposed dock but not an east/west line in the sandbar area. He further conceded that the bottom was uneven or rolling in some areas. The applicant desires the extra dock length, compared to the 210-foot length of the Jones and Johnson piers on either side of him, so that he will be able to cast into slightly deeper water for fishing purposes. However, the depth prevailing at the 210-foot mark waterward from the shoreline is four feet, and the depth at the end of the proposed dock would only be approximately two inches deeper, 55 feet waterward of the other docks. Even out at the 300-foot waterward mark from shoreline, the water would be less than six inches deeper than it is at the 210-foot mark. Consequently, it was not shown how the applicant would gain any particular fishing advantage, in terms of deeper water, by locating the end of his dock some 55 feet waterward of the adjacent docks. Mr. Harp of DER visited the site to determine the water depths referenced above and to determine whether the dock would comply with Chapter 403, Florida Statutes, and the various pertinent rules concerning water quality contained in Chapter 17, Florida Administrative Code. Mr. Harp made a biological appraisal of the site to determine the location and density of seagrass beds and to determine whether the project would adversely affect water quality in Russell Bayou. Seagrasses exist at the site only between approximately 130 and 150 feet waterward of the mean high water mark. The remaining bottom substrate waterward of that point to, including, and beyond the end of the proposed dock is simply bare sand. The dock is narrow enough not to damage seagrasses by shading. Based upon Mr. Harp's uncontroverted expert testimony, it is found that the project will not result in a violation of class III water quality standards and, indeed, no Petitioner disputes that fact. Except indirectly, through navigational impact, the proposed dock does not pose a significant adverse affect on public health, safety, welfare or the property of others. It was not shown that the dock would adversely affect the conservation of fish or wildlife and, indeed, those elements of the "public interest criteria" are undisputed. The proposed dock is considered permanent in nature and will have no significant historical or archeological resource impact. It will not cause a significant adverse effect on fishing values aside from the incidental effect its navigational impact might have on those values. The proposed dock will have some impact on navigation. As shown by Respondent's Exhibit 3, the dock will extend approximately 55 feet more waterward than the existing 210-foot Johnson pier. Although a channel width of four times a boat's length is an adequate margin of safety for an average boat sailed in a competent manner, the fact that the proposed dock would extend 55 feet beyond the extent of the adjacent Johnson dock and the fact, established by Ms. Bass, that there are intermittent shallow sandbar areas which further narrow the channel from the southerly margin of it, reveal that the safe navigational channel is much narrower at the location of the end of the proposed dock, than in other nearby areas. The proposed dock would intersect this narrow "safe channel" at its most constricted point or "pinched area". For this reason, the proposed dock with its length constitutes an impediment to navigation to both the power boat and sailboat navigation described by the Petitioners' witnesses. The pier existing at the westward opening of the cove, although it is 300 feet in length, does not impose an impediment to navigation because the channel is much wider at that point than at the constricted point where the applicant's proposed 265-foot dock would intersect it. The dock would also pose some detrimental effect on the recreational values of the project site to the Petitioners in terms of their passive recreational interest in an unobstructed view. Further, the fact that the dock would infringe on a long-accepted course of travel for boats, which is located some 50 feet or so beyond the end of the existing docks would cause both a navigational and recreational adverse impact in terms of the "public interest criteria" of Section 403.918(2), Florida Statutes. No other adverse impacts would be occasioned by installation of the dock, however, and these adverse impacts can be alleviated if the dock permit were conditioned upon an alteration so that the proposed dock does not extend more than 210 feet waterward of the mean high water mark. The proposed dock will not cause any significant, cumulative or secondary adverse impacts.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by DER granting the permit sought by Respondent Eckert on the condition that the dock proposed to be constructed, and for which the permit is sought, is restricted to a length of no more than 210 feet waterward of the mean high water mark at the Respondent/applicant's property, including that portion of the dock represented by the terminal platform. DONE AND ENTERED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1181 Petitioner Richard J. and Judith A. Wittig's Proposed Findings of Facts 1-17. Accepted. Petitioner Robert E. and Suzanne E. Stoyer's Proposed Findings of Fact 1-7. Accepted. Rejected as speculative and not supported by preponderant evidence. Accepted. Respondent DER's Proposed Findings of Fact 1-12. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Accepted. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted but not itself materially dispositive. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Coates, Esq. Pat Comer, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven E. Quinnell, Esq. JAMES L. CHASE, P.A. 101 East Government Street Pensacola, FL 32501 Robert E. and Suzanne E. Stoyer 5768 Red Cedar Street Pensacola, FL 32507 S.P. and P.A. Gallup 5660 Innerarity Circle Pensacola, FL 32507 E. P. Ericson 5652 Innerarity Circle Pensacola, FL 32507-8300 Philip E. Johnson 5794 Red Cedar Street Pensacola, FL 32507 Richard J. and Judith A. Wittig 11903 Autumnwood Lane Ft. Washington, MD 20744 Robert Eckert, Jr. 4817 Ravine Court Mobile, AL 36608
The Issue Issues presented here concerned the entitlement of Respondent, Russell D. Horn, Sr., to be granted an environmental permit by Respondent, Department of Environmental Regulation, to build a boat stall on an existing dock in Putnam County, Florida. The boat stall's dimensions are ten feet wide by twenty feet deep and the construction would be on the St. Johns River.
Findings Of Fact On July 13, 1981, Russell D. Horn, Sr., who has a residence in Putnam County, Florida, bade application to the State of Florida, Department of Environmental Regulation, for the necessary permits to construct a boat stall ten feet wide by twenty feet deep at the site of an existing dock. A copy of the application may be found as Respondent Horn's Exhibit No. 2 admitted into evidence. The dock where Horn applied to build the boat slip is found in the St. Johns River, a navigable water body and waters of the State of Florida in Putnam County, Florida. The application form which was executed by Horn required him to indicate the name of adjacent property owners to the property at which the dock site was located, both upland and adjacent to the uplands. See Rule 17- 4.28(11)(c), Florida Administrative Code. To accomplish this task, the applicant utilized a sketch which he had been provided when he purchased his homesite in the area and indicated to the Department that the adjoining landowners were Milton Kilis and Robert Michal. In fact, Robert Michal was not an adjacent landowner. The adjacent landowner, Milton G. Kilis, wrote to advise the Department that he had no objection to the construction of the boat slip. This correspondence was dated September 11, 1981. A copy of that correspondence may be found as Respondent Department's Exhibit No. 3 admitted into evidence. After reviewing the initial application, additional information was requested by a document entitled "Completeness Summary" which was addressed from the Department to the Applicant Horn. A copy of this "Completeness Summary" requesting additional information may be found as Department's Exhibit No. 1 admitted into evidence. Through this summary, Horn was requested to provide written authorization from the dock owners. It was also requested that Respondent provide an affidavit of ownership of the upland property adjacent to the dock site. Horn received permission to construct from Frank Scussell and William A. Reaves, persons he understood to be the dock owners. See Respondent Horn's Exhibit No. 3 admitted into evidence. Horn misunderstood the question related to ownership of upland property and provided a mortgage deed with its attendant description of his home site property in Putnam County, which is at a different location from that of the upland property adjacent to the dock. A copy of that deed and other matters may be found as Respondent Horn's Exhibit No. 4 admitted into evidence. Department of Environmental Regulation reviewing authorities wrote on the "Completeness Summary" form, Respondent Department's Exhibit No. 1, indicating that the task of seeking written authorization from the dock owners had been achieved and that the affidavit of ownership of upland property owners was satisfactory. In fact, all adjacent property owners had not been notified of the pendency of the application request through the process of Horn's advising the Respondent agency of the names of all adjacent property owners to the uplands and the affidavit of ownership of the upland property owner at the dock site was not filed. During the review process, permission was given by the Department of the Army, Corps of Engineers, for the construction of the boat slip. A copy of this permission, by letter dated August 31, 1981, is Respondent Department's Exhibit No. 2, admitted into evidence. The Department of Environmental Regulation reviewed the permit application and prepared an application appraisal, which may be found as Respondent Department's Exhibit No. 5 admitted into evidence. The findings made by that application appraisal related to application review are found to be accurate. In particular the permit application appraisal indicated that the boat slip would be located at the waterward end of the existing dock structure, which existing dock structure accommodated four boats. The appraisal found that the project was located in South Putnam County in the town of Georgetown on the St. Johns River. The permit appraisal found that the project site would be located in the littoral zone of the river about one hundred feet waterward of the mean high water line. No littoral growth was seen at the depth of the proposed construction. Tapegrass, Mexican waterlily and cattail were present near the shore. Several large hardwood swamp trees were present at the shoreline. The project was found to be located in a Water Class III and adjacent waters were Class III according to the appraisal, no significant immediate or long-term adverse environmental impacts were to be expected to occur due to the completion of the boat slip. Horn was subsequently given a construction permit to add the boat stall to the existing dock. A copy of that permit may be found as Respondent Department's Exhibit No. 6 admitted into evidence. The only specific conditions related to that matter pertain to the necessity for the utilization of turbidity curtains throughout the project for purposes of containing the turbidity that might exceed State water quality standards, The permit was issued on September 22, 1981. After receiving the permit, sometime around October 20, 1981, Horn purchased the necessary lumber to construct the stall and on October 24, 1981, went to the dock site to begin the installation of pilings related to the construction of the boat stall. While placing the pilings on October 24, 1981, an adjoining property owner and Petitioner in this cause, Marshall Wolfe, stood on his dock, that is, Wolfe's dock, and hailed to Horn to stop building. Horn did not know Wolfe before that time and did not know that Wolfe, not Michal, was the adjacent property owner on that side of the dock. On October 28, 1981, Marshall Wolfe and his wife, Ann Wolfe, wrote to the Department in the person of G. Doug Dutton, Subdistrict Manager, and indicated that they were opposed to the issuance of the permit, which is under the number of the permit issued to Respondent, and requested a hearing on the question of the issuance. A copy of that correspondence may be found as Department's Exhibit No. 7 admitted into evidence. On the same date, October 28, 1981, Horn was contacted by the Department of Environmental Regulation and advised of the Wolfe complaint and Horn was told that he would receive a cease and desist order from the Department of Environmental Regulation. On October 30, 1981, Horn returned to the construction site and found four of his neighbors finishing the construction of the stall. In fact, the neighbors did conclude the construction and the boat slip remains in place. A cease and desist letter was mailed on November 2, 1981; however, this letter was not received by Horn immediately. Horn did subsequently learn of the contents of the letter some time in November or December, 1981. A copy of the cease and desist letter may be found as Respondent Department's Exhibit No. 8 admitted into evidence. On December 13, 1981, an attempt was made at the instigation of Department officials for the Petitioners and Respondent Horn to resolve the controversy. This effort was unsuccessful. As a consequence, a formal hearing was necessary in keeping with the request of the Department that the Division of Administrative Hearings conduct a Subsection 120.57(1), Florida Statutes, formal hearing. This request had been made on November 12, 1981, and an initial hearings had been scheduled for February 11, 1982, following consultation between the various parties and the Hearing Officer. At the initial hearing session on February 11, 1982, which was to be held in Palatka, Florida, counsel for Department indicated that the upland property was not owned by Horn and that easement rights to that property were unclear. In view of this fact the hearing was continued until the ostensible upland property owner could be notified of the pendency of the issuance of an environmental permit and be allowed to participate. Notification was subsequently provided by an Intent to Issue Statement, a copy of which may be found as Respondent Department's Exhibit No. 9 admitted into evidence. This notification was through the Department at the instigation of the Hearing Officer. The date of notification was February 12, 1982. An order was entered on March 17, 1982, which allowed the intervention of St. Johns Crescent Lakesites, Inc. into the proceedings and that party, in the person of its counsel, Lauren E. Merriam, III, Esquire, participated in the April 15, 1982 hearing. St. Johns Crescent Lakesites, Inc. is the owner of the upland property adjacent to the dock in which Horn had constructed the boat slip. No indication was given that any easement rights were ever granted by that corporation to grant access to the boat slip from the adjacent property. The overall dock area, in terms of square feet, is between 500 and 1000 square feet. Other than the permit application made by Horn, no other permission has been received by the Department to construct the other features of the dock. A further appraisal of the project site subsequent to the September 18, 1981, appraisal has been made. That appraisal was made by the field inspector for the Department. This appraisal by Melvin Rechtor agrees with the project appraisal made by the first field inspector, John Hendricks. The testimony of Melvin Rechtor on environmental impacts of the project are accepted as accurate. Rechtor's testimony established that the project would have an insignificant impact on water quality considerations and would not adversely affect the species or the conservation of fish, marine and wildlife or other natural resources. Rechtor's testimony established that there would be no unreasonable interference with waterward access of adjacent property owners. Rechtor's testimony also established that there would be no navigational hazard nor interference with fishing and swimming by persons using the river.
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 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 concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 14th day of April, 2005.
