Findings Of Fact Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property") The Property has a shore length of 68.5 feet on Crescent Lake. Crescent Lake is a "water of the state" as defined in Section 403.031, F.S. The agency, now DEP, is the state agency charged with environmental concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake. Mr. Carter's westerly neighbor also has a shorter dock going into the lake. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value. The Hagemans initially filed a complaint with the DEP in regard to the dock. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes. The consent order provides, in pertinent part, that Mr. Carter will (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about 100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state". A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C. 3/ Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows: 2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof * * * 5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent. * * * 12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights. DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1995
The Issue The issues to be determined in this case are whether the amendments to the Town of Ponce Inlet Comprehensive Plan adopted by Ordinances 2008-01 (2008 Amendment) and 2010-09 (2010 Amendment) are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Petitioner, Pacetta, LLC, is a Florida limited liability company that owns real property in Ponce Inlet. Petitioner, Mar-Tim, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Down the Hatch, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Pacetta, LLC, controls and manages Mar-Tim and Down the Hatch. Petitioners' real property in the Town is directly affected by the challenged plan amendments. Petitioners submitted objections to the Town during the period of time beginning with the transmittal hearing and ending with the adoption of the challenged amendments. The Town of Ponce Inlet is a municipality in Volusia County that adopted a comprehensive plan in 1990 ("Town Plan"), which it amends from time to time pursuant to chapter 163, Florida Statutes. Petitioners' Property Petitioners' property is located on the north cut of the Ponce de Leon Inlet. The current uses on the property include a restaurant, a marina and boat repair yard with a marine travel lift, and vacant lands. An old cemetery is located on a portion of Petitioners' property. A shell midden (ancient refuse pile) is located on a portion of Petitioners' property. Petitioners' property has single family residences on three sides. A significant tree canopy is adjacent to Petitioners' property and large oak trees are on the property. A historic cemetery known as Pacetti Cemetery is near Petitioners' property. Several historic buildings are located near Petitioners' property. A museum and exhibit building are located nearby on Beach Street. Beach Street and Sailfish Drive are the main roads to access the Petitioners' property. These two roads have been designated by the Town as Scenic Roads. Petitioners' property comprises approximately 15 acres. About 2.4 acres are zoned for multifamily development. The remaining acreage is zoned Riverfront Commercial. There is also a special Riverfront Overlay District ("ROD") that covers Petitioners' property. Background There are at least three areas in the Town designated Riverfront Commercial. The Riverfront Commercial land use category permits wet boat storage, dry boat storage, boat sales and services, fishing charter boat dockage, fishing and boat equipment and supplies, seafood markets, restaurants, boatels, and boat construction and repairs. There is only one area in the Town designated ROD. In the ROD, land uses are more restricted. Dry boat storage facilities are allowed by special exception in Riverfront Commercial, but not within the ROD. The Town created the Riverfront Commercial District and the ROD in its Land Use and Development Code in 2004, but these land use categories were not identified in the Town Plan at that time. After the designation of the ROD in 2004, Petitioners began to acquire several parcels of land located within the ROD. The Town continued to engage its citizens in a visioning process for the Town's waterfront, which lead to the 2008 Amendment. As originally proposed, the 2008 Amendment allowed upland boat storage in the ROD under certain conditions in Future land Use Element ("FLUE") Policy 4.1.5. A citizens group obtained a sufficient number of signatures to place on the general election ballot a charter amendment to prohibit dry boat storage facilities in the ROD. Therefore, when the Town adopted the 2008 Amendment, it changed FLUE Policy 4.1.5 to prohibit dry boat storage facilities. Petitioners challenged the charter amendment in circuit court and the court determined that the charter amendment was invalid. The court also invalidated FLUE Policy 4.1.5, determining that the policy was only adopted to conform to the charter amendment. The circuit court decision was affirmed on appeal. Town of Ponce Inlet v. Pacetta, LLC, 63 So. 3d 840 (Fla. 5th DCA 2011). Petitioners also asked the circuit court to invalidate the ROD provisions of the Land Use and Development Code, but the circuit court declined to rule on their validity. Following the court's invalidation of FLUE Policy 4.1.5, the Town adopted the 2010 Amendment, which creates a new Policy 4.1.5. The new policy also prohibits dry boat storage facilities in the ROD. Petitioners' Objections Petitioners' overarching objection to the plan amendments is that they prohibit Petitioners from building a dry boat storage facility. Petitioners claim the prohibition is inconsistent with other policies of the Town Plan and is not supported by data and analysis. The term "dry boat storage facility" is not defined in the Town Plan. The Volusia County Manatee Protection Plan ("MPP"), which is adopted by reference in Coastal Management Element ("CME") Objective 1.6, defines dry boat storage facility as "an upland structure used for storing watercraft." Petitioners already store some boats on trailers or boat stands on the upland while they are being repaired or refurbished in the boatyard. The Town interprets the Town Plan to allow this type of upland storage in the ROD, citing FLUE Policy 4.1.4 of the 2008 Plan Amendment which explains that dry boat storage means "multiple level boat racks" in "fully enclosed buildings" and not the "[l]imited storage of boats on trailers or boat stands" in conjunction with boatyard operations. FLUE Policy 4.1.5 Petitioners' objections to FLUE Policy 4.1.5, which was adopted in the 2010 Amendment, are addressed first because the associated issues affect the other policies that have been challenged. FLUE Policy 4.1.5 states: The Town shall maintain a zoning overlay district over those Riverfront Commercial and High Density Multi-family Residential lands west of Sailfish Drive, south of Bounty Lane and north of the most southerly portion of Sailfish Drive to promote the water-oriented character of the River and compatibility with adjacent residential properties, to ensure protection of view corridors of the River and the tree canopy in the Front Street Area, and to preserve the historic setting and unique character of this area, including, but not limited to, the scenic roads of Beach Street and Sailfish Drive. Dry boat storage facilities shall be prohibited within this overlay district. Petitioners argue that the prohibition against dry boat storage facilities in Policy 4.1.5 conflicts with the MPP adopted by reference in the Town Plan because the MPP expresses a preference for dry slips over wet slips. The MPP includes a Boat Facility Siting Plan, which contains requirements that must be met for new or expanded marina facilities. The Plan requires the Town to place a priority on the development of boat slip capacity at or south of Ponce de Leon Inlet, to encourage marinas to include both wet slips and dry slips, and to "utilize dry storage to the fullest extent possible in addition to wet slips." The Boat Facility Siting Plan includes best management practices ("BMPs"). One of these BMPs is "Use of upland dry storage shall take precedence over the creation of new wet slips." The prohibition against dry boat storage facilities in the ROD will likely reduce the number of boats launched in the ROD because fewer boats can be accomodated in wetslips than in upland dry boat storage facilities.2/ This proposition was not rebutted by Petitioners. A major objective of the MPP is to reduce manatee injuries and deaths due to collisions with boats. The fewer boats, the fewer potential collisions with manatees. Therefore, the effect of the prohibition against dry boat storage facilities in the ROD is consistent with the objectives of the MPP. Dry boat storage facilities are allowed elsewhere in the Town. The design standards and BMPs in the MPP are described as permitting requirements, not as zoning or land use restrictions. The MPP does not state that all of its design standards and BMPs must be reflected in every permit issued by the Town, County, or State. It does not require, for example, that every marina must have more dry slips than wet slips. The MPP acknowledges that marina sites must conform to local land use and zoning regulations that affect the construction of new wet and dry slips. Under the Policy 4.1.5, utilizing dry storage to the fullest extent possible in the ROD means allowing upland storage of boats on trailers and boat stands in conjunction with boatyard operations. Petitioners also contend that Policy 4.1.5 is not supported by relevant and appropriate data and an analysis by the Town. The prohibition against dry boat storage facilities in the ROD is supported by data and analysis that shows that the noise, fumes, traffic, scale, and appearance of dry boat storage facilities is incompatible with residential uses and with scenic, historic, and natural resources nearby. Petitioners showed that some of the same incompatibility factors exist in other Riverfront Commercial areas, but the factors are not as numerous and pronounced as they are in the ROD. FLUE Policy 1.2.2(g) Petitioners challenge FLUE Policy 1.2.2(g), which limits the floor area for buildings within the Riverfront Commercial District (including the ROD) to 5,000 square feet. Petitioners argue that this limit is in conflict with CME Policy 1.6.6, which requires the Town to adopt and maintain a boat slip allocation program pursuant to which the Town made an allocation of 213 dry slips to Petitioners' property. As discussed in the Conclusions of Law, this argument cannot be raised in this proceeding because the 5,000 square- foot limit was already in the Town Plan before the 2008 Amendment. Petitioners argue that the floor area limit is subject to compliance review in this proceeding because its effect has been substantially altered by new provisions in the 2008 Amendment. The 2008 Amendment added a floor area ratio (gross floor area of buildings divided by upland lot area) limit of 35 percent for Riverfront Commercial, and an increase in floor area up to 10,000 square feet is made possible in a new Planned Waterfront Development District. However, these and other changes in the 2008 Amendment do not alter the fundamental effect of the existing floor area limit. The Town has adopted a boat slip allocation program as required by CME Policy 1.6.6. The allocation of 213 dry slips to Petitioners' property is not required by Policy 1.6.6 or by any other policy in the Town Plan. Petitioners cannot base a claim of internal inconsistency on matters that are external to the Town Plan.3/ Even if the floor area limit in FLUE Policy 1.1.1(g) is subject to compliance review, it is not inconsistent with the MPP for the same reasons that the prohibition of dry boat storage facilities in FLUE Policy 1.4.5 is not inconsistent with the MPP. FLUE Policy 4.2.4 Policy 4.2.4 of the 2008 Amendment states that, in developing design standards for a new Planned Waterfront Development District, limited exceptions might be allowed to the floor area limit of 5,000 square feet, up to 10,000 square feet, but this exception will not apply to dry boat storage facilities. No Planned Waterfront Development District has yet been created in the Town. Despite Petitioners' objection to the 5,000 square- foot floor area limit generally applicable in Riverfront Commercial, Petitioners argue that there is no data and analysis to support the Town's allowance for an increase in the floor area limit to 10,000 square feet in a Planned Waterfront Development District. The knowledge of what a 5,000 square foot or a 10,000 square foot building looks like is all the data needed to set a limit based on scale. CME Policy 1.6.6 CME Policy 1.6.6 of the 2008 Amendment states: The Town shall maintain and enforce its boat slip allocation program. This program shall provide for equitable allocations of new wet and dry slips. Upland slips may be permitted under this allocation program if they can meet the requirements of the Comprehensive Town and the Town Codes. Upland/dry slips development shall be balanced against other community policies, including neighborhood compatibility and visual impacts. Dry slips shall not take precedence over wet slips based solely on environmental concerns. Petitioners contend that Policy 1.6.6 conflicts with the building size limitations in FLUE Policies 1.2.2(g) and 4.2.4 and with the prohibition against dry boat storage facilities in FLUE Policy 4.1.5 because the size limits and prohibition do not allow for the balancing called for in Policy 1.6.6. Petitioners are interpreting the policy more literally than the Town. Things are not going to be placed on scales and made to balance in the middle. The Town interprets the policy to direct the Town to consider competing policies according to their relative importance. In Riverfront Commercial areas other than the ROD, there can be combinations of wet and dry slips, including dry boat storage facilities, but the floor area limit of 5,000 square feet is a "community policy" that will also apply to affect the outcome of the balancing. In the ROD, the prohibition against dry boat storage facilities is another community policy that must be applied. The Town has established a community policy to prohibit dry boat storage facilities in the ROD because the Town has determined that such facilities do not harmonize with nearby residential uses and scenic, historic, and natural resources. Data and analysis support this determination. Although Petitioners got a Town witness to testify that a prohibition does not allow for balancing, the record shows that the Town gives no weight to the desirability of dry boat storage facilities in the ROD and some weight to the desirability of wet slips, so that the scales always tip in favor of wet slips and for boats on trailers or boat stands in a boatyard. Petitioners contend that the statement in FLUE Policy 1.6.6 that "Dry slips shall not take precedence over wet slips based solely on environmental concerns," is directly in conflict with the MPP, because the MPP states a preference for dry slips based specifically on environmental concerns (manatees). However, the meaning of the policy statement is that environmental concerns, alone, will not determine how many dry slips are allowed. Other concerns will be taken into account in determining how many dry slips are allowed. That is not inconsistent with the MPP. Recreational and Working Waterfronts Petitioners contend that the floor area limit in FLUE Policy 1.2.2(g), the prohibition against dry boat storage facilities in FLUE Policy 4.1.5, and the floor area limit for dry storage facilities in FLUE Policy 4.2.4 are inconsistent with section 163.3177(6)(a)3.c., which requires a FLUE to include criteria to "[e]ncourage preservation of recreational and commercial working waterfronts for water-dependent uses in coastal communities." The term "recreational and commercial working waterfronts," is defined in section 342.201(2)(b): "Recreational and commercial working waterfront" means parcel or parcels of real property that provide access for water- dependent commercial activities or provide access to the public to the navigable waters of the state. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water-dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial, research, or governmental vessels. These facilities include docks, wharfs, lifts, wet and dry marinas, boat ramps, boat hauling and repair facilities, commercial fishing facilities, boat construction facilities, and other support structures over the water. There is no current use of Petitioners' property that is prohibited by the challenged amendments. In other words, Petitioners' working waterfront is preserved. To the extent section 163.3177(6)(a)3.c. should be interpreted more broadly to encourage not only preservation, but also economic vitality through further development and redevelopment of waterfronts, the Town has adopted FLUE criteria to encourage their development and redevelopment. The floor area limit and the prohibition against dry boat storage facilities in the ROD do not prevent Petitioners from further developing their working waterfront to add or expand uses. Evaluation and Appraisal Petitioners challenge FLUE Policies 1.2.2(g) and 4.2.4 and CME Policy 1.6.6 as constituting a failure of the Town to update its plan to address the changes needed as identified in the Town's Evaluation and Assessment Report ("EAR"). Petitioners failed to prove that the Town did not make the changes identified in the EAR. Summary Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment create internal inconsistency in the Town Plan. Petitioners failed to prove that the 2008 Amendment or the 2010 Amendment is not supported by relevant data and analysis. Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment is not in compliance.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the plan amendments adopted by Town Ordinances 2008-01 and 2010-09 are in compliance. DONE AND ENTERED this 20th day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2012.
The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992.
The Issue Whether the Appellant, Edward M. Mitchell, has demonstrated that development rights in certain real property he owns have vested against the provisions of the 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On or about September 23, 1980, Mr. Mitchell entered into an agreement to purchase 6.141 acres of property (hereinafter referred to as the "Property"), located just north of Interstate 10, on the east side of North Meridian Road, Leon County, Florida. The Property was to be purchased from Textron Petroleum Products, Inc. The following "additional provision" was included in the agreement entered into for the purchase of the Property: Buyer to have 30 days from date hereof within which to obtain such permits as he deems necessary. If Buyer cannot obtain the same, he shall give written notice thereof within said time limit and the contract shall be null and void. If such written notice is not given within such period, this contingency shall be deemed waived. In 1980, the Property was zoned C-1, neighborhood commercial. Under C- 1 zoning, neighborhood commercial, up to 69,000 square feet of commercial space could be placed on the Property based upon a restriction of 85% impervious surface. Mr. Mitchell wanted to insure that he could obtain the permits necessary to develop the Property consistent with C-1 zoning before he purchased the Property. On or about November 3, 1980, the real estate broker involved in the purchase of the Property, sent a letter to Bob Speidel of Environmental Services of Leon County. In the letter Leon County was informed of the pending sale of the Property and the contingency of "Mr. Mitchell being able to obtain a permit to develop the tract by clearing the land, constructing a retention pond and filling the remaining land to a usable elevation." On or about November 7, 1980, an Application for Permit for Clearing and Development was filed on behalf of Mr. Mitchell. This permit was the only permit required in 1980 to develop the Property. The evidence failed to prove, however, that it was the only permit required to develop the Property immediately before the adoption of the 2010 Comprehensive Plan. On or about November 14, 1980, a Clearing and Development Permit, number 1113 (hereinafter referred to as "Permit 1113"), was issued on the Property by the Leon County Department of Public Works, Division of Environmental Services. Permit 1113 specifically provided that Mr. Mitchell was authorized by the permit "to make changes in this land proposed to be subdivided, developed or changed in use by grading, excavating, removal, alteration or destruction of the natural top soil, as hereinafter located and described." The specific use Mr. Mitchell planned to put the Property to and the manner of developing the Property were not specified in Permit 1113 or the application therefore. On or about December 23, 1980, Mr. Mitchell purchased the Property for $44,211.92. Mr. Mitchell would not have purchased the Property for the price paid if it had not been zoned C-1 or if he had not obtained Permit 1113 or a similar permit. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County prior to his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Development of the Property. Sometime between 1980 and 1985, Mr. Mitchell cleared the Property. In June, 1985, Mr. Mitchell applied with the Florida Department of Environmental Regulation for a General Permit for New Stormwater Discharge Facility Construction. In October, 1985, the permit was approved. When the Property was cleared some of trees were removed which should not have been removed. Therefore, in July, 1985, Mr. Mitchell agreed to replant trees on the Property. In August, 1985, Mr. Mitchell was issued a Tree Removal Permit for the trees that had already been removed. Mr. Mitchell brought fill (approximately five feet) onto the Property and did substantial grading of the Property. The elevation of the Property was increased from 108 feet to 112-113 feet. Storm water drainage was designed and installed on the Property. The storm water pond was built to accommodate 65,000 to 70,000 square feet of construction. Leon County was aware of this fact. In order to maximize use of the Property a Leon County employee informed Mr. Mitchell that he could place the retention pond on an abutting parcel of property. Consequently, Mr. Mitchell purchased an adjoining parcel of real estate. Mr. Mitchell has not obtained a storm water permit, a building permit or site plan review or approval for the Property. Mr. Mitchell has worked closely with officials of Leon County before and after his purchase of the Property. Mr. Mitchell retained an engineer to prepare a site plan for the Property. The site plan was prepared consistent with C-1, neighborhood commercial zoning, 85% impervious surface and off-site retention. The weight of the evidence failed to prove that Leon County was made aware of the site plan. Mr. Mitchell would not have done the site work or purchased the abutting parcel of property except for the C-1, neighborhood commercial zoning of the Property and the issuance of Permit 1113. The weight of the evidence failed to prove that Mr. Mitchell informed Leon County after his purchase of the Property what specific use the Property would be put to or that Leon County ever approved any specific type of development of the Property. Change in Position or Obligations and Expenses Incurred by Mr. Mitchell. Mr. Mitchell spent $44,211.92 to purchase the Property based upon the zoning on the Property and the issuance of Permit 1113. The work performed on the Property after it was purchased by Mr. Mitchell was performed primarily by Mitchell Brothers, Inc., a company owned by Mr. Mitchell. The "value" of the work performed by Mr. Mitchell was in excess of $250,000.00. The evidence failed to prove what the actual cost of the work performed was to Mr. Mitchell. Mr. Mitchell acquired the abutting parcel of property in reliance on the zoning on the Property, Permit 1113 and a suggestion of an official of Leon County. The abutting property costs several thousand dollars. The evidence failed to prove, however, that the suggestion of the Leon County official concerning the purchase of the abutting property constituted a representation of Leon County that the Property could be developed in a particular manner. It was merely a solution offered to a problem of Mr. Mitchell which Mr. Mitchell was free to reject or accept. The suggestion also only confirmed that the Property could be developed under the current zoning. Development of the Property under the 2010 Plan. Under the 2010 Comprehensive Plan, the Property is located in an area designated as "lake protection." Only minor commercial uses would be permitted in such an area. Under the 2010 Comprehensive Plan, the Property may be developed with a maximum of 20,000 square feet of retail (non-office) space. Additionally, one dwelling unit per two acres of property could also be used for residential purposes. Therefore, the Property could be developed by building three residences on the Property in addition to the 20,000 square feet of retail space. Only approximately one-third of the site work that has been performed on the Property would be needed to develop only 20,000 square feet of commercial space on the Property and the purchase of the abutting property would not have necessary. Procedure. On or about November 2, 1990, Edward M. Mitchell filed an Application for Vested Rights Determination (hereinafter referred to as the "Application"), with Leon County. By letter dated January 2, 1991, Mr. Mitchell was informed that his Application was incomplete. By letter dated January 18, 1991, Mr. Mitchell provided the additional information requested. By letter dated January 25, 1991, Mr. Mitchell was informed that Leon County intended to deny his Application. Mr. Mitchell requested a hearing before the Staff Committee of Leon County by letter dated January 30, 1991. On February 11, 1991, a hearing was held to consider the Application before the Staff Committee. By letter dated February 13, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Mr. Mitchell that the Application had been denied. On February 22, 1991, a Notice of Appeal was filed by Mr. Mitchell appealing the decision to deny the Application. By letter dated March 1, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on May 24, 1991.
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
Findings Of Fact Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid- point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Patco's application for permit on the following conditions: That no submerged or transitional vegetation be destroyed in constructing the dock. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed. That no dredging by any method be used to gain access to the dock. That the owner of the dock allow no docking except in slips seaward of the main part of the dock. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock. DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance. Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock. Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits. COPIES FURNISHED: Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506 Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Peter W. Mansfield 1861 Meadow Court West Palm Beach, Florida 33406
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue Whether Wayne Zimmet's proposed single-family boat dock and lift project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rule 40E-4.051(3)(c).1
Findings Of Fact Both Wayne Zimmet and Scott Rosenblum own property in Tequesta, Florida, in a community known as North Passage, which has a man-made navigation and drainage easement canal that terminates at its eastern end at Mr. Rosenblum's property, which is Lot 74, at 8738 Riverfront Terrace. Mr. Zimmet's property, which is Lot 75, at 8750 Riverfront Terrace, is south of the eastern terminus of the canal. The Rosenblum and Zimmet properties are adjacent and share a common boundary. There is an existing dock extending from Mr. Rosenblum's property into the canal. The existing dock is perpendicular to, and extends west from the middle of, the shore of the eastern terminus of the canal. There is a wooden walkway leading from the residence on Mr. Rosenblum's property to the existing dock. However, there also has been a wooden walkway leading from Mr. Zimmet's property to the existing dock. As indicated in the Preliminary Statement, there is a dispute between Mr. Zimmet and Mr. Rosenblum as to who is entitled to access and use the existing dock--and in particular the south side of the existing dock. That dispute will be resolved in state circuit court.2 For purposes of this proceeding, it will be assumed that Mr. Rosenblum has the right to use the existing dock. On or about May 25, 2006, Mr. Zimmet filed an application requesting an ERP exemption to install an eight-foot by twenty-foot (160-square feet) marginal dock with a two-pile elevator lift to designed to accommodate his boat, which is approximately 24.5 feet long (22 feet at the waterline) and eight feet wide. According to documentation submitted with the application, the proposed dock would be centered along the waterfront of his property and extend approximately four feet into the canal. The proposed boat lift would be skewed toward the western end of the proposed marginal dock with the intent being to dock his boat with the bow facing the west so that proposed dock could be used to enter and load the boat from the stern. This positioning of the proposed lift and boat at the proposed dock would skew a boat on the lift at the proposed dock about three feet to the west, away from the existing dock. Based on the evidence, it is found that Mr. Zimmet did not prove by a preponderance of the evidence that his proposed boat dock and lift, even if skewed to the west as indicated in the application drawings, would not "impede navigation" to and from the south side of the existing dock. (Otherwise, Mr. Zimmet's proposed dock and lift would not "impede navigation" in the canal.) This impediment to navigation to and from the south side of the existing dock is not a mere inconvenience. Although Mr. Rosenblum now only owns and uses a raft at the existing dock, he testified that he plans on purchasing and using a boat. Boats in the range of approximately 24.5 feet in length with a beam of 8 to 8.5 feet are common in the North Passage canal. A boat of that size docked at the south side of the existing dock would barely fit alongside Mr. Zimmet's boat, whether docked or on the lift, and there would not be a reasonable amount of clearance for navigating a boat of that size commonly to or from the south side of the existing dock if Mr. Zimmet's boat were docked at the proposed dock or on the proposed lift. (Likewise, if a boat of that size were docked on the south side of the existing dock, there would not be a reasonable amount of clearance for Mr. Zimmet to use his proposed dock and lift.) There was no evidence of any impediment to navigation to and from the north side of the existing dock.
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, absent a circuit court determination that Mr. Rosenblum does not have the right to access and use the south side of the existing dock, Mr. Zimmet's proposed dock and lift project is not exempt from the need to obtain an ERP. DONE AND ENTERED this 23rd day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2007.
The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2013.
