Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, just north of the Venetian Causeway. Respondent has constructed the marina on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund, acting through the Department of Natural Resources. The submerged lands which are the subject of the lease in question in this proceeding are sovereignty lands lying within the Biscayne Bay Aquatic Preserve as defined in Section 258.165(2)(a) , Florida Statutes, and in Chapter l6Q-18, Florida Administrative Code. Chapter l6Q-18 became effective March 20, 1980. In 1976 and 1977 Respondent received permits from the State of Florida, Department of Environmental Regulation, and the Army Cords of Engineers for two "J" shaped main docks, one 700 feet long and the other 500 feet long, roughly forming a half circle extending about 450 feet from the shore. The permits also authorized the construction of two 280-foot long "T" shaped docks within the semicircle, one on each side of the central dock and fueling facility which is the subject matter of this proceeding. on October 27, 1977, DER issued Permit No. l3-30-0740-6E to Respondent, authorizing the construction of the central dock and fueling facility. On August 18, 1977, Respondent applied to the Board of Trustees and DNR for the lease in controversy. The letter and enclosures indicated the area to be leased would encompass 38,268 square feet of bay bottom. The applicant's letter makes reference to a "docking and fueling facility," while the legal description submitted with the application is captioned "Omni Marina Phase II and Fueling Dock." The plan-view drawings and cross-sectional views of the pier which Respondent filed with DER and which were in turn furnished to DNR show a platform at the end of the central pier labeled with the words "FUEL," but do not show any building associated with the pier. A cross-sectional view of the platform alone was neither provided by Respondent nor requested by either DER or DNR. Notwithstanding this fact, however, during the course of DNR review of the lease application, Respondent advised DNR officials of its intention to place some structure on the platform at the terminus of the central pier to serve as a "fueling station." DNR personnel in charge of the application evaluation in fact conducted in-house discussions concerning the agency's interpretation of what would constitute a "fueling facility." These DNR officials in fact knew that Respondent intended to erect a structure on the platform of the central pier to serve as a fueling facility. Despite this knowledge, DNR officials did not request additional information relating specifically to the character of any structure which Respondent intended to erect on the platform at the end of the central pier for reasons hereinafter set forth. The Board of Trustees of the Internal Improvement Trust Fund met on March 23, 1978, and approved Respondent's lease application The minutes of that meeting state that: This facility is consistent with existing usage and does not unreasonably interfere with lawful and traditional public use of-the Preserve and is in compliance with Section 258.165, Florida Statutes. As a result of the Board approval, a lease was issued and duly executed allowing Respondent ". . . to operate exclusively a fueling facility upon sovereignty lands. . . ." Respondent was granted a lease term of five years commencing March 21, 1978. At the time the lease in question was approved, neither the lease itself nor any rule, statute, or agency practice defined the term "fueling facility." There were, in fact, no rules adopted by the Board of Trustees or DNR in existence on March 23, 1978, governing the leasing of sovereignty submerged lands. Instead, DNR and the Board of Trustees employed former Rule 18-2.22, Florida Administrative Code, as a policy guide in processing submerged land lease applications. Under the Florida Administrative Procedure Act, the provisions of Chapter 18-2, Florida Administrative Code, had become null and void as of October 1, 1975, by virtue of the failure of the Board of Trustees and DNR to readopt those rules in accordance with Chapter 120, Florida Statutes. Even Chapter 18-2, Florida Administrative Code, however, failed to define "fueling facility," "marina," or "commercial docking facilities," all of which terms appear in the disputed lease issued to Respondent. Former Rule 18-2.164, Florida Administrative Code, contains licensing requirements for marinas, including furnishing construction drawings of proposed structures and complying with the requirements of that rule in the event any structural modifications occur. The record in this cause establishes, however, that DNR, at the time the lease in controversy was issued, did not uniformly apply the "policy guide" contained in former Rule 18-2.164, Florida Administrative Code. In fact, it appears that prior to the promulgation of the Biscayne Bay Aquatic Preserve rule, Chapter 16Q-18, Florida Administrative Code, on March 20, 1980, DNR's policy in the leasing of sovereignty submerged lands was to concern itself only with the amount of state land that a proposed use would require. In this connection DNR and the Board of Trustees were not concerned with the design of structures to be placed on leased sovereignty submerged lands, but were concerned only with maintaining the (integrity of lease boundaries. After December 20, 1978, DNR expressed this policy as a rule, exempting the modification of existing structures from lease modification requirements so long as the structural modification did not require ". . . the use of any additional sovereignty submerged lands." Rule 16Q-17.14(1)(j) , Florida Administrative Code. At the time of the issuance of the lease here in question, Respondent did not know the exact nature, size, or height of any structure that it might wish ultimately to build on the central platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings submitted to DER, and in turn forwarded to DNR by DER. On January 11, 1979, approximately fourteen months after issuance of the DER permit and less than one year after issuance of the lease here in question, Respondent furnished a copy of the floor plan of the proposed building on the central pier to DER. This floor plan indicated areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan was a storage area for electric carts to be used in servicing vessels utilizing the marina facilities. On April 20, 1979, the City of Miami issued a valid building permit for construction of the marina fueling station. Respondent notified DER and DNR in July of 1979 that it intended to begin construction of the marina shortly thereafter. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 25, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Prior to construction of the fueling platform and building, but after completion of the central lease pier, DNR made an annual inspection of the marina on February 16, 1981. During this inspection, the central lease dock was checked and found to be in compliance with the Biscayne Bay Aquatic Preserve Act. In December of 1981, DNR learned that Respondent had constructed a building on the platform at the end of the central pier through receipt of a copy of a DER warning notice issued to Respondent. DNR then sent a letter to Respondent on January 29, 1982, advising Respondent to revise its plans and locate the building on the uplands since the building as constructed might be in violation of Section 258.165, Florida Statutes, commonly referred to as the Biscayne Bay Aquatic Preserve Act. Correspondence then ensued between DNR and Respondent culminating in a March 8, 1982, letter from DNR advising Respondent of DNR's intent to seek cancellation of the lease for the central pier at an April 20, 1982, meeting of the Board of Trustees. The following day, on March 9, 1982, an inspection was made of the central lease facility. The building constructed on the platform at the end of the central pier has a floor area of approximately 3,800 square feet, and a roof area of approximately 5,292 square feet. The building was constructed at a cost of approximately $500,000. The net area of the platform at the end of the central pier contains about 9,640 square feet. The height of the structure is approximately 18 to 20 feet, and it is situated over the water approximately 400 feet east of the bulkhead. The interior of the building has been divided into six rooms, and no fuel pumps were found on the leased area on March 9, 1982. Construction of the building was halted before it could be completed or put into use. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant' room with cash register and equipment for fuel pumps. In addition, the structure contains bathroom facilities for boat owners and passengers and employees, and shower facilities for marina employees. All of these uses are customarily associated with the operation of marina facilities. Construction of the fueling station at the end of the central pier did not require the use of any sovereignty submerged lands in addition to those encompassed within the existing lease. Further, construction of the building did not require additional dredging or filling nor did it result in any significant adverse environmental impact.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund dismissing this cause, and denying the relief requested against Respondent. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Mortimer and Gay Hall, are the owners of real property known as Lots 60 and 61, Block 19, Breeze Swept Beach Estates on Ramrod Key in unincorporated Monroe County. The Halls have constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. On January 21, 1992, Monroe County issued the subject building permit, Permit Number 9010001679, to Mortimer and Gay Hall as owners and Pierce Construction and Builders as contractor. The subject permit would be subject to certain conditions imposed by the Florida Department of Natural Resources (DNR). As permitted, the use of the structure would be limited to swimming and recreation. Boating, or the mooring of boats, would not be permitted. By letter dated December 17, 1991, DNR authorized the project subject to certain conditions and limitations, and provided, in pertinent part, as follows: Mort and Gay Hall are hereby authorized to proceed with the construction of a swim platform as proposed This authorization is specifically conditioned upon the following: * * * The structure shall be used only for passive recreational activities such as swimming and fishing. Mooring of vessels at the facility either on a temporary or permanent basis is strictly prohibited. The platform and walkway shall be elevated four feet above mhw [mean high water]. Handrails at a height of four feet shall be installed along the walkway and around the platform. Handrails shall be two feet above the platform deck. Install at least three "NO MOORING" signs along the perimeter of the platform. Install a ladder on the waterward terminus of the platform for water access. The application submitted by the Halls to Monroe County that resulted in the subject permit incorporated the DNR conditions and described the project as follows: Applicant wishes to install a wooden swim platform (20 ft. length x 8 ft. width) and a wooden elevated access walkway (25 ft. length x 4 ft. width) to access this platform; for the purpose of using the channel cut for swimming activities at their existing single family residence. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares ... [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Despite the Stanton ruling, supra, Monroe County has interpreted the four foot rule as being applicable to swimming piers such as the one the Halls wish to construct. Monroe County's long-standing interpretation of the four foot rule would not prohibit the permit because of the minimal effect such construction would have on the nearshore waters. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The structure that is the subject of this proceeding is in a subdivision that was under development prior to 1986 and would, if permitted, terminate in a channel more than 20 feet wide with water at least six feet deep at mean low tide. Monroe County's interpretation of the four foot rule is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County considers the subject application by the Halls to meet all of its permitting criteria. The structure will be constructed in a dredged area of adequate size for swimming. Access to the structure by boat is unlikely because the swimming area is surrounded by a reef and hard bottom that is extremely shallow, even at high tide. At low tide much of this surrounding area is above water, and the deepest area of water is approximately six inches. At high tide, the water depth of the surrounding area ranges from approximately four inches to approximately eighteen inches. On the waterward side of the surrounding area, the water depths are less than four feet. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Benthic communities exist in the waters between the Halls's property and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate those waters. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. One cannot reach deep water by boat from the Halls's property without crossing areas in which the water depth is less than four feet at low tide. Petitioner speculates that prop dredging, and the resulting damage to seagrass beds and shallow water marine communities, would result if one were to attempt to navigate these shallow waters by a propeller powered boat. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner has failed to establish that this concern justifies denial of the permit. Petitioner did not establish that damage would be done to the environment by swimming in the area of the proposed swimming platform. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Halls's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9010001679, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ENTERED this 26th day of January, 1993, 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 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2958DRI The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 11, 12, 13, and 16 are subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached because the use of the platform is limited. The testimony by Robert L. Herman as to the purpose and interpretation of the four foot rule by Monroe County is found to be a more persuasive than Mr. Metcalf's testimony. The following rulings are made on the proposed findings of fact submitted on behalf of Respondents. The proposed findings of fact in paragraphs 1, 2, 3,4, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire Theodore W. Herzog, P.A. 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Pierce Construction and Builders Route 4, Box 319 Summerland Key, Florida 33042 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether to approve the City of Gulf Breeze's (City's) application for a Consolidated Wetland Resource Permit and Sovereign Submerged Lands Authorization to conduct a restoration project in Pensacola Bay.
Findings Of Fact Background This dispute involves a challenge by Petitioners to the third phase of a restoration project by the City designed to preserve the Island and protect its historical resources. The project site is located in sovereign submerged lands adjacent to the Island on the southwest side of the Highway 98 Bay Bridge which traverses Pensacola Bay connecting the Cities of Gulf Breeze and Pensacola. The Island is not a true island, but has always been connected to the mainland by a strip of land referred to as an isthmus, which meets the shoreline at Lot 36 of an older subdivision known as the First Addition to Casablanca Parcel No. 1 and platted almost sixty years ago. The isthmus juts out from Lot 36 into Pensacola Bay in a northwesterly direction for several hundred feet before making a 90-degree turn to the southwest where the Island then runs roughly parallel to the shoreline for around a half mile. See Joint Ex. 5-7, 14, and The Island, isthmus, and shoreline form the boundary around a small body of water known as Gilmore Bayou, an ecologically important and pristine salt marsh area. According to aerial photographs, at its widest point, the Island appears to be no more than a few hundred feet wide. Petitioners reside at Lot 37, which is just northeast of the isthmus on the shoreline. The rear part of Lot 37 faces Pensacola Bay and the City of Pensacola to the northwest. Lots 36, 35, and 34 (running to the southwest along the shoreline and facing Gilmore Bayou), are owned by Patricia Moreland, Robert Ozburn, and Intervenor Paul Tamburro, respectively, all of whom testified at the final hearing. Except for Petitioners, the project is supported by virtually all of the residents of the area as well as numerous civic organizations. See Joint Ex. 33. On July 14, 2008, the City filed with the Department its Joint Application for Works in the Waters of Florida, which would allow the City to complete the third phase of the project by (a) planting native submerged vegetation over approximately three acres of sovereign submerged lands, and (b) placing approximately 16,000 cubic yards of fill material and planting native emergent vegetation to stabilize the fill material on sovereign submerged lands at the north end of the Island. See Joint Ex. 3. The Department has authority under chapter 373, Florida Statutes, and Florida Administrative Code chapter 18-21 to approve the application. After an extensive review of the application, on August 9, 2010, the Department issued a Consolidated Notice of Intent to Issue Wetland Resource Permit and Consent to Use Sovereign Submerged Lands, which authorized the proposed project. See Joint Ex. 4. The proprietary authorization (letter of consent) was issued under the authority of rule 18- 21.005(1)(c), which identifies a number of activities that qualify for a letter of consent. In this case, because of the range of proposed activities, the project could qualify for a letter of consent under subparagraphs 8., 15., and 16. of the rule. On September 1, 2010, Petitioners filed their petition challenging the proposed agency action. While their initial pleading raised a number of issues, and cited two rules as a basis for reversing the agency action, these allegations have been substantially narrowed over the course of the proceeding and are now limited to the following: whether the project constitutes management activities associated with the protection of a historic site, thus qualifying for a letter of consent under rule 18-21.005(1)(c)16.; and whether the project unreasonably restricts or infringes upon their riparian rights of navigation, boating, swimming, and view, as proscribed by rule 18-21.004(3)(c). They also question whether Intervenor has standing to participate, but that issue is not dispositive of the primary issues in this case. Petitioners do not contest the issuance of a Wetland Resource Permit. Finally, Respondents and Intervenor question whether Petitioners have standing to initiate this action. The Project Site The project is located on sovereign submerged lands adjacent to the Island, a "naturally occurring sandy beach," as that term is contemplated in rule 18-21.005(1)(c)8. This is true even though portions of the "sandy beach" have eroded over time. The City owns the entirety of the Island. See Joint Ex. 14 and 15. This was not disputed by Petitioners. The Island is a public park, natural preserve, and historic site that is owned and maintained by the City exclusively for public use. Deeds by which the property was conveyed to the City require that it be forever used as a natural preserve and maintained in its natural state. See Joint Ex. 14 and 15. The Island and the area immediately adjacent thereto have a long and significant history dating back to the 1700's. Throughout the 1700's and 1800's, various portions of the Island were used as a careening facility for the repair and maintenance of large vessels. A marine railway was also built. In the late 1800's, a quarantine station was constructed on the Island where people who had contracted yellow fever were isolated. A cemetery exists upon the Island containing the remains of many who perished from the yellow fever epidemic. Also, there were many shipwrecks at the Island, of which some of the remains still exist. Accordingly, there are historic resources and artifacts such as shipwrecks and human remains on and around the Island. The Island has sustained significant erosion over the past 70 years. The northeast shoreline has eroded some 450 to 500 feet during that period of time. There has been a significant loss of vegetation and land mass. Without protection, the Island is in a perilous condition and subject to a permanent breach. The peat bog underlying the Island is vital to the stability of the Island and has been greatly damaged. It requires protective measures, such as those contemplated by the proposed project in order to assure its preservation. Due to the effects of hurricanes and storms, the erosion has substantially increased during the past decade. The erosion has caused the unearthing of and damage to historic artifacts and the salt marsh in Gilmore Bayou. There are clearly visible remnants of the former marine railway on the Island, which are being weakened by current weather events and require protection in order to preserve them. Caskets from the cemetery as well as human bone remains have been unearthed and additional damage will occur without protective restoration efforts. If the erosion continues, there will be more damage to the historic artifacts and the salt marsh will be destroyed. The Project To prevent further erosion and to protect the Island and Gilmore Bayou, the City has applied to the Department for three separate phases of a project to stabilize the shoreline. The first two phases of the project involved the construction of an artificial reef breakwater and the planting of shoreline vegetation. See Joint Exhibit 7a. They have already been approved by the Department and are no longer in issue. The first and second phases were challenged by Petitioners but the cases were eventually settled. See Case No. 09-4870, which involved the second phase. The third phase of the project is being conducted primarily for the maintenance of essentially natural conditions and for the propagation of fish and wildlife. This phase can be described as follows: restoration or nourishment of a naturally occurring sandy beach as contemplated by rule 18-21.005(1)(c)8.; habitat restoration or enhancement as contemplated by rule 18-21.005(1)(c)15.; management activity associated with protection of a park as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a preserve as contemplated by rule 18-21.005(1)(c)16.; management activity associated with protection of a historic site as contemplated by rule 18-21.005(1)(c)16.; and management activity associated with protection of habitat restoration or enhancement as contemplated by rule 18- 21.005(1)(c)16. While the project implicates each of the above provisions, the application and proposed agency action indicate that the letter of consent is granted on the theory that the project is associated with protection of historic sites. See Joint Ex. 4. The third phase is also designed to minimize or eliminate adverse impacts on fish and wildlife habitats and other naturally occurring resources. The project consists of the placement of 16,000 cubic yards of fill material in the area between the existing artificial oyster reef and the shoreline to restore and replace conditions that previously existed. The fill will consist of beach compatible sand that will be approximately six inches to a foot above mean high water. This phase also involves the planting of appropriate native wetland vegetation in the fill area, which will help stabilize the fill. The planting of vegetation in the third phase is separate and distinct from the plantings authorized in the second phase of the project. The project is needed in order to prevent further damage to a public park; public preserve; threatened, endangered, or special concern species of vegetation/habitat; and historic artifacts. These protection efforts were requested and recommended by the Florida Department of State. Petitioners contest only the propriety of the fill materials and the planting of the emergent stabilizing grasses on the fill. The fill portion of the project is located a significant distance from Petitioners' property. The closest portion of the project is estimated to be at least 550 feet from Petitioners' property, while the bulk of the project will take place between some 750 to 1,200 feet from their property. The Proposed Vegetation Planting In the third phase of the project, the City proposes to plant and establish emergent grasses (those that grow in water but partially pierce the surface) and sea grasses, all of which are appropriate native wetland vegetation on the Island. The proposed emergent grasses are Spartina alterniflora (also known as smooth cordgrass) and Juncus roemerianus (also known as black needle rush), which will be used for stabilization of wetlands. The proposed submerged seagrasses are Halodule wrightii (a type of shoal grass) and Ruppia maritime (a type of widgeon grass), which will help stabilize the fill. The smooth cordgrass is native to the Island. It will be planted in the fill area to prevent the fill from eroding. It is expected that once they mature, the height of the plants will not exceed two and one-half feet. Due to the water depth in the area, the shoreline slope, the sediment supply, and the wave action, the smooth cordgrass will not spread outside the proposed project area. Also, it will not interfere with navigation, boating, swimming, fishing, or view. The vegetation will, however, help fishing in the area. The black needle rush is also native to the Island. It will only grow to approximately two and one-half feet in height due to stressful conditions caused by the salt content in the water and wave action. It will not spread beyond the proposed project area and will not interfere with navigation, boating, swimming, fishing, or view. Like the smooth cordgrass, it will enhance fishing in the area. Both Halodule wrightii and Ruppia maritime are native to the Island. Both have slow growth rates, which when coupled with the "high energetics of the system," will hinder their ability to spread outside the project area. Neither seagrass will hinder navigation, boating, swimming, fishing, or view. They will afford a greater opportunity for snorkeling, recreation, and fishing; they will serve as a nursery habitat for finfish and shellfish; they will increase the habitat value of the area; and they will improve water quality. Petitioners submitted no evidence to contradict these findings. They also failed to submit any evidence that the fill material or grasses would spread into any riparian area that might be appurtenant to their Lot 37. The above findings are reinforced by the results of a separate project known as Project Greenshores located across Pensacola Bay from the Island. Project Greenshores involved the restoration of wetlands using dredge material to restore islands that are then protected by the construction of a breakwater and are stabilized by the planting of the same grasses that are proposed for the Island project. The two projects are in relatively close proximity to each other and have essentially the same environment. One difference, however, is that Project Greenshores receives a small source of sediment from stormwater outfalls, which means that it has a higher chance of grasses growing than does the Island. Even with the increased sediment, the grasses at that project have not spread beyond the project area, they have not interfered with navigation, boating, swimming, view, or fishing, and they have enhanced fishing in the area. Historical Artifacts Petitioners contend that the project does not qualify for a letter of consent under rule 18-21.005(1)(c)16. That provision authorizes the Department, acting on behalf of the Board of Trustees of the Internal Improvement Trust Fund, to issue a letter of consent for "management activities associated with . . . historical sites . . . provided there is no permanent preemption by structures or exclusion of the general public." As noted above, the Island has a long and significant history dating back to the early 1700's and there are historic resources and artifacts on the Island. See Finding of Fact 10, supra. When there is an archeological site issue in a permit, the Department typically relies on information from the Division of Historical Resources of the Department of State. See Fla. Admin. Code R. 18-21.004(2)(c)("reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands"). Here, the Department relied on information from that agency, which indicates that there are archeological resources at the project site. The Department of State also recommended placing fill over the artifacts to protect them, which will be accomplished by the proposed fill. In addition, the Department relied upon information contained in a survey conducted by Mr. Empie, a registered professional surveyor, to generally show where those artifacts are located. See Joint Exhibit 5, also referred to as the Empie survey. The evidence supports a finding that the project is for management activities associated with historical sites. The record shows that there is strong public support for the project. See Joint Ex. 33. Although many of the artifacts will be covered by the fill, the fill will actually protect them from damage, destruction, theft, and removal. By protecting them, future generations will be able to enjoy the artifacts. No "structures," as that term is defined in rule 18- 21.005(1)(c)16., are part of the project. Therefore, the project will not cause permanent preemption by structures. Contrary to Petitioners' assertion, the project will not exclude the general public from the fill area. The City contemplates that other activities, such as underwater snorkeling, will encourage the public to utilize the project site. The evidence supports a finding that the project qualifies for a letter of consent under this rule. Riparian Lines The Empie survey provides a reasonable depiction of the various riparian lines in the areas adjacent to the proposed project. See Joint Ex. 5. A professional surveyor with the Division of State Lands, Mr. Maddox, agreed that it was a reasonable depiction of the angle of the riparian lines and a "fair distribution of riparian areas," including that of Lot 37. The only property owner adjacent to the Island is Patricia Moreland, who owns Lot 36 and has resided on that parcel since 1956. As noted above, the isthmus meets the northwest boundary line of Lot 36. By executing a Letter of Concurrence, Ms. Moreland conferred upon the City all rights, both proprietary and riparian, that she has with respect to Lot See Joint Ex. 16. Petitioners contend that they own riparian rights appurtenant to their Lot 37, which is to the east of Lot 36. The City and Intervenor dispute this claim and contend that Lot 37 does not adjoin any navigable water and thus there are no riparian rights appurtenant to Lot 37. Assuming arguendo that Lot 37 adjoins Pensacola Bay, it is still separated from the project site by riparian areas appurtenant to the Moreland property (Lot 36) as well as the riparian areas appurtenant to the City property, i.e., the Island and isthmus. The Empie survey, which reasonably depicts the riparian lines in the project area, shows the project site as being approximately 300 feet inside the existing breakwater, which is shown as being no closer than 48.9 feet away from the westernmost riparian line appurtenant to Lot 37. See Joint Ex. The primary portion of the fill site is located around 370 feet from the closest point of the western riparian line appurtenant to Lot 37. Id. No portion of the project is located within 25 feet of the Lot 37 riparian line. Id. Petitioners presented no evidence disputing the riparian areas identified on the Empie survey or otherwise identifying the areas of riparian rights appurtenant to their property. While they engaged the services of Mr. Barrett, a professional land surveyor to prepare a boundary survey, the purpose of the survey was to show that Lot 37 adjoins Pensacola Bay, rather than depicting the riparian areas appurtenant to that lot. See Petitioners' Ex. 1. Infringement on Riparian Rights Rule 18-21.004(3)(c) requires that "activities [in submerged lands] must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland property owners." (emphasis added) Petitioners contend that, even though they do not routinely use their riparian rights, the project will restrict or infringe upon their riparian rights of boating, swimming, navigation, and view. To make this determination, they assert that the appropriate test under the rule is mere infringement, and not "unreasonable" infringement; however, this interpretation is contrary to the plain wording in the rule. The main living floor of Petitioners' residence is approximately 50 feet above sea level. The emergent grasses will be located no closer than 500 feet from the edge of Lot 37 and 600 feet from their residence and are expected to grow only to a height of no more than two and one-half feet. The concern that the grasses will impair Petitioners' view is without merit. Although Dr. Cope initially believed that fill or grass would be placed or planted "all the way up to and abutting our lot 37," this interpretation of the City's plans was incorrect. A photograph taken from his back yard indicated that he could view the northeastern corner of the Island where new vegetation or fill might be placed, but the photograph depicted an area outside of the Lot 37 riparian area. See Petitioners' Ex. 18. While Dr. Cope initially stated that the new emergent grass would "clearly degrade the view from both the house and the shoreline," he later acknowledged that the project would not have any effect upon his view of Lot 37's riparian areas. There are a boathouse and dock in the waters behind Petitioners' house. However, Petitioners submitted no evidence to support their suggestion that the project might cause the water behind Lot 37 to become more shallow and adversely affect boating and navigation. Contrary evidence by the Department and City was unrefuted. Finally, Dr. Cope stated at hearing that he has never been swimming in Gilmore Bayou or Pensacola Bay and has no intention of doing so. His wife offered no evidence that she ever intends to swim in those waters. In summary, the activities undertaken in the project area will not unreasonably restrict or infringe upon Petitioners' riparian rights of swimming, boating, navigation, or view within the meaning of rule 18-21.004(3)(c). Petitioners' Standing Respondents and Intervenor contend that Petitioners lack standing to bring this action for two reasons: that they do not own Lot 37 individually but rather as trustees, and the petition was not filed in that capacity; and that Lot 37 does not adjoin navigable waters. See § 253.141(1), Fla. Stat. ("[r]iparian rights are those incident to land bordering upon navigable waters"). As described by the City's real estate expert, in June 2010, or before the instant petition in this case was filed, the Copes executed two deeds for estate planning purposes, which resulted in "legal title [being] owned part by Dr. and Ms. Cope as to one-half life estate and for Ms. Cope as to one-half for her life estate [and] then the remainder interest is vested in the trustees [of the D. Nathan Cope or Cynthia Russell Cope revocable trust agreements] for the remainder interests." Put in plainer language, this meant that the ownership of Lot 37 is now divided as follows: an undivided 50 percent is owned by the wife as to a life estate and by the wife's revocable trust as to the remainder interest, and the other undivided 50 percent is owned by the wife and husband as to a life estate for the husband's lifetime and by the husband's revocable trust as to the remainder interest. Therefore, there are four entities or persons with an ownership interest in the property: Dr. Cope, Mrs. Cope, Dr. Cope's trust, and Mrs. Cope's trust. The City presented expert testimony regarding the chain of title of Lot 37, beginning in June 1952 when the subdivision was first platted, and running through June 2010, when Petitioners conveyed the property to themselves as trustees of two revocable trusts. According to the expert, the subdivision plat in 1952 reflects a narrow strip of property (described as a hiatus strip) separating the entire subdivision, including Lot 37, from the waters of Gilmore Bayou, Pensacola Bay, and Woodland Lake, a nearby body of water. The strip was a park that was dedicated to the public. See Joint Ex. 1. In 1962, the developer conveyed by quit claim deed the entire strip to the record title holder of each lot in the subdivision. At that time, Lot 37 was owned by the Blaylocks. The expert found that each conveyance of Lot 37 that occurred after 1962, up to and including the Copes' purchase of the property in February 2008, did not include the hiatus parcel. Therefore, he opined that title in the strip property continues to remain with the Blaylocks. Besides his title search, the expert further corroborated this opinion by referring to a topographic survey of Lot 37 prepared in June 2005, see Joint Ex. 2a; a title insurance policy on Lot 37 issued in 2008 when the Copes purchased the property that specifically excludes title insurance for the hiatus parcel; and a recent Santa Rosa County tax bill describing the property without the hiatus parcel. In response, Petitioners contend that the hiatus strip never existed or the 1952 plat is invalid because it failed to comply with section 177.08, Florida Statutes (1951), which required that "all land within the boundaries of the plat must be accounted for either by blocks, out lots, parks, streets, alleys or excepted parcels." Because a dispute over the exact boundary lines of Lot 37 exists, this issue must be resolved in the appropriate circuit court. See § 26.012(2)(g). For purposes of deciding the merits of this case, however, it is unnecessary that this determination be made. Intervenor's Standing Dr. Tamburro currently resides on Lot 34, which faces Gilmore Bayou, and jointly owns the property with his wife. He uses the Bayou to boat and for other recreational purposes. He also uses the Island to swim, walk, and boat. The preservation of the Island is important to him since it serves as a barrier island in protecting his home during storm events. Although Dr. Tamburro's wife did not join in his petition to intervene (but appeared as his counsel), he still has a recognized ownership interest in the property.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the City's application for a Wetland Resource Permit and Letter of Consent to Use Sovereign Submerged Lands. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2011.
Findings Of Fact The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to construct a riprap revetment as sought by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue. DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872 The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. COPIES FURNISHED: Michael Mead P.O. Drawer 1329 Fort Walton Beach, Florida 32549 William Stone P.O. Drawer 2230 Fort Walton Beach, Florida 32549 Candi Culbreath Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400
Findings Of Fact By application (Exhibit 1) dated September 15, 1978, WCMI requested a permit to dredge approximately 740 cubic yards of sovereign bottom lands in Snook Bay adjacent to upland property owned by applicant. At the same time applicant requested a lease of some 0.98 acres of submerged sovereign land, containing the area to be dredged, for the purpose of constructing a marina with docking facilities over the leased property. Following receipt of all requested information from applicant, plus objections from adjacent land owners, DNR, as the state agency acting on behalf of the Trustees Internal Improvement Trust Fund (TIITF), held a public hearing in Naples, Florida on April 25, 1979. The Hearing Officer submitted a report following this hearing in which he recommended the lease be granted (Exhibit 4). After review DNR staff recommended granting the lease and before the Trustees took action, Petitioner requested this hearing. In the interim DER reviewed the application for a dredge and fill permit and, following a preliminary investigation, advised WCMI of its intent to deny the permit (Exhibit 8). At informal conferences with DER, WCMI revised its application to commence the dredging 25 feet from the existing seawall, reduce the amount of material to be dredged to 349 cubic yards and to move the floating dock sections further from the seawall. This revised application (Exhibit 10) was submitted to DER and, after review, DER on November 13, 1979 (Exhibit 11) issued its notice of intent to grant the requested permit. Petitioner then requested this hearing to contest the granting of this permit. The Isles of Capri was developed into a waterfront homesite project by bulkheading, dredging and filling a pristine mangrove area to provide the homesites now occupied by members of Petitioner. This project destroyed the ecosystem as it existed before the development. The area which is here proposed for lease and for a permit to dredge some 349 cubic yards therefrom is located in the originally disturbed area. Most of the homes on the Isles of Capri are built on waterfront lots and most homeowners have docks and boats. Fishing is generally considered good off the docks and in surrounding waters. The proposed marina is located in Snook Bay, a relatively small cul-de-sac-like area. On the dead end of Snook Bay, which is adjacent to the proposed marina, mangroves have been planted and the area designated as a park. Since these mangroves are rat infested, the park concept has not received general acceptance. However, the proposed marina will not adversely affect this park. Apart from the ecological problems that will allegedly be created by the leasing of the property and the dredging thereon, Petitioner alleges the project will interfere with other "rights" of the homeowners of the Isles of Capri. Although this Hearing Officer has considerable doubts as to the validity of these alleged rights, the facts presented relating thereto will be first considered. WCMI owns the uplands adjacent to this submerged land and this land is zoned General Retail Commercial, which includes use as a proposed marina. Use as a marina would create less additional vehicular traffic than would any of the other 12 uses considered most likely for this land. (Testimony of Barr) The proposed marina will provide wet dock space for 32 boats and dry storage for 116 boats in sheds with the boats stacked three-high. No ramps will be provided and boats will be launched and picked up by use of a forklift at the concrete seawall. Parking space for 54 vehicles will be provided. This parking space complies with local requirements, as does WCMI's proposed construction. Collier County and the area of Collier County in the vicinity of Isles of Capri is an area of rapidly increasing population. A need for some six additional marinas has been recognized by Collier County authorities. Numerous witnesses opposed the use of WCMI property as a marina because: They do not think the site is suitable for a marina, and a much smaller marina would be preferred. Installation of a marina would increase boat traffic, thereby increasing the risk of boat collisions, increase wake action which might damage seawalls, disrupt the peace and quiet now enjoyed by these residents, and increase the possibility of boats striking manatees. Property values in the vicinity of the proposed marina and elsewhere in the Isles of Capri might decline. Operation of a marina would increase the noise level, thereby disturbing occupants of residences closest to the proposed marina. Vehicular traffic would be greatly increased on the Isles of Capri once the marina commences operation. Most of these objections are beyond the jurisdiction of this tribunal. This property has been zoned for the use proposed and if this use is inappropriate, the proper recourse is with the local zoning authorities. The credible evidence submitted is that the operation of the marina would increase boat traffic in and out of Snook Bay some 20 round-trips per day and this increase will create and insignificant additional risk of collision with other boats or with the occasional manatee that is sighted. While most of this traffic will use the deeper channel that follows the seawalls and boat docks of residents, an alternate channel is available for use by boaters with local knowledge of its characteristics. Even if all traffic used the deeper channel, no serious hazard to navigation would thereby result. No credible evidence was presented that the increased boat traffic caused by the marina would increase the damage to a properly constructed seawall. Navigation of these waters is a right to be jealously guarded. If wave damage results, local authorities have jurisdiction to establish speed or wake restrictions. Furthermore, the more credible evidence presented was that at the Isles of Capri more subsidence of soil behind the seawalls is caused by tidal action than by wake action. No credible evidence was presented that the operation of the proposed marina would decrease property values. Even if this could be shown, such a use would be consistent with the usage for which this property is zoned. There are two marinas across the street from WCMI's proposed marina and no evidence was presented that the operation of these smaller marinas affected property values. The uncontradicted evidence that was submitted was that property values on the Isles of Capri have increased at a rate as great as, if not greater than, land values elsewhere in Collier County. The roads on Isles of Capri are presently operating far below capacity and the additional traffic expected to be generated by the proposed marina will have no significant impact on these roads, nor will the construction of the marina create any vehicular safety problems. Petitioner's contention that the construction and operation of the marina will create additional pollution because of septic tank, oils and greases, and water runoff from impervious surfaces is not well-placed. It is not well-placed in the first instance because this is not the proper forum in which to air these complaints. Local health and safety ordinances regulate the installation of septic tanks, installation of fueling facilities and retention of water falling on the property. Secondly, the evidence presented here is that WCMI will comply with all regulations regarding septic tanks, no live-aboard boats will be moored at the marina other than temporarily for fuel or supplies, fuel tanks will be underground on the upland area, provided with proper protection and insulation, and the fuel will be dispensed by hose from the fueling dock by experienced personnel. WCMI will provide containment booms and retrieving material to take care of the accidental spill that might occur. Collier County Ordinance requires the first 1-inch of rainfall be retained on the property and WCMI will comply with this requirement. From the testimony of the numerous residents who testified, the primary concern of most of those who object to the proposed installation is that "their" waters will become more available to people living elsewhere and this will somehow detract from the use and enjoyment of these waters by these residents. If access to the Isles of Capri is facilitated for people living elsewhere by the installation of this marina, these waters will become more crowded, resulting in less fish per resident, and this aquatic preserve will become less private and more available to the general public. These residents purchased their homesites because of the waterfront characteristics and the quietness and solitude of the area. Facilitating access by non-residents will necessitate sharing these waters with these non-residents, thereby detracting from the enjoyment residents hoped to retain undiminished forever. The allegations of Petitioner that merit the most serious consideration in both of these applications of WCMI involves those relating to the ecosystem. Petitioner contends that the proposed dredging will adversely affect the ecosystem and this requires denial of the dredge-and-fill permit. Without the permit the lease would be useless. Petitioner also contends the granting of the lease would be contrary to the public interest. WCMI's original application was to dredge from the seawall seaward some 60 feet until the desired depth contour was reached. Also, floating concrete docks would be adjacent to the seawall for berthing sites. When an inspection of the area disclosed the bottom grasses were heaviest from the seawall out to about 30 feet, the applicant was issued the Notice of Intent to Deny by DER because of these bottom grasses and the shading that would be caused by the floating docks. WCMI then proposed to do no dredging for the first 25 feet from the seawall, except for two areas 30 feet and 36 feet wide needed to launch boats, and also to move the floating docks 25 feet from the seawall so as not to shade the grassy areas. As noted above, the site under consideration was severely disturbed by the initial dredging which destroyed the original grassbeds at this site. Some of these grasses have now returned but the coverage is sparse and patchy. From the seawall out to about 30 feet the grass is Cuban shoalweed and manatee grass. Respondent's investigations and studies revealed only these two grasses. Petitioner's biologist who performed studies similar to those done by Respondent found halophila in the deeper waters (up to five feet) extending out as far as 60 feet from the seawall. Halophila is a more ephemeral grass that grows in deeper depths than Cuban shoalweed and manatee grass and is often found in previously dredged areas. The area proposed for dredging comprises some 1200 square meters, and seagrasses cover about one-fourth of the dredge area. Sample cores taken by Petitioner's expert in October while the more luxuriant summer growth predominated showed some 1600 blades of grass per square meter, while the winter sample taken by WCMI expert showed 467 blades per meter. In the 320 square meters of seagrasses in the area a total biomass of invertebrates was found to be 17 pounds. Using generally accepted conversion rates and invertebrate reproduction cycles to convert this biomass to fish, this weight of invertebrate biomass could be converted into between 2 and 10 pounds of fish annually. Removal of the seagrasses will remove feeding grounds and hiding areas for some types of aquatic animals and also take away the type of fish that inhabit such areas. On the other hand, the piling and other docking structures that will be installed will attract sessile organisms such as oysters, barnacles, etc. which currently attach themselves to rocks and mangrove roots in the vicinity. The biomass or weight of these organisms is likely to equal or exceed those to be lost by dredging away the seagrasses. While different types of fish will be attracted to the area where the shellfish and other attaching animals congregate than will be attracted to grassy bottoms, the change is not significant from a quality or quantity of fish point of view. The area to be dredged is an area that has partially recovered from its earlier destruction and there is no reason to believe a similar recovery will not recur after the dredging here proposed is completed. No evidence was presented that a collision between a boat and a manatee has ever occurred in the waters in the vicinity of the Isles of Capri. Any conclusion that such an incident is likely to occur because of increased boat traffic when the proposed marina is in operation would be sheer speculation. Furthermore, Collier County does not contain any of those designated waters wherein special manatee protection rules are to be set up. Nor is Snook Bay one of those areas where a concentration of manatees is likely to occur.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondent, Bruce Schmitt, is the owner of real property known as Section 15, Township 66, Range 32, Sombrero Beach Road and Tingler Lane - 88 Tingler Lane, Vaca Key Bright, Florida. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. On May 25, 1993, Monroe County issued building permit number 9320003962 to Bruce A. Schmitt, Owner, and Marathon Woodworking, General Contractor, authorizing the construction of a 4 feet X 140 feet wooden dock with a 4 feet x 40 feet terminus. The site of the permitted dock is on an open water shoreline. Running parallel to this shoreline is a channel that is greater than four feet in depth at mean low tide and is greater than twenty feet in width. The permitted dock will terminate at the edge of that channel in an area that is at least four feet deep at mean low tide and more than 20 feet in width. There are no hard coral bottoms found in the area where the dock will terminate. In the vicinity where Mr. Schmitt proposes to construct his dock, there is a channel that is perpendicular to the shoreline that intersects with the channel that is parallel to the shoreline. This perpendicular channel leads out to deep water. The channel providing access to deep water crosses an area of shallow water, which is an area of flats that is referred to by the Department as a shoal. The water depth of this area at mean low tide ranges between 3.0 and 3.5 feet. The channel running parallel to the shoreline and the channel leading out to deep water are not marked. Boats that use this area traditionally have used the channel that is parallel to the shoreline to access the channel in front of Mr. Schmitt's property that leads to deep water. These boats thereafter access deep water by crossing the area of flats that is referred to by the Department as a shoal. While it was established that boats cannot navigate around the shoal, the dimensions of the shoal were not established. Natural shallow water marine communities, such as seagrasses, exist in the waters in the navigation route for boats that will use the permitted dock. Sea grass beds play an important role in water quality maintenance in the Keys through filtration and nutrient uptake and serve as nursery habitats for fisheries. The cumulative impact of the operation of propeller- driven boats in the Keys results in damage and destruction to shallow water marine communities, such as sea grass beds, through prop dredging. There is evidence of considerable prop dredging of the sea grass beds in the shallow waters offshore of the subject property. Boats have been known to run aground in the flats off Mr. Schmitt's property. Any boat using the permitted dock will have to cross shallow waters with seagrass with water depths of less than four feet at mean low tide. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), Florida Statutes, requires Monroe County land development regulations to comply with certain principles for guiding development, including the following: (b) to protect shoreline and marine resources, including mangroves, coral reef formations, wetlands, fish and wildlife and their habitat. * * * (e) to limit the adverse impacts of development on the quality of water throughout the Florida Keys . . . Monroe County's Comprehensive Plan, which has been approved by the Department and by the Administration Commission, is implemented, in part, through its adopted land development regulations, codified in Chapters 6 and 9.5, Monroe County Code. Section 9.5-345(m) (2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located, and con- structed such that: * * * No structure shall be located on submerged land which is vegetated with seagrasses except as is necessary to reach waters at least four (4) feet below mean low levels for docking facilities; No docking facilities shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, Section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain, and where appropriate, to improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land use that directly or indirectly degrades nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the locations of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened or endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, section 258.39 et seq. There are no channel markers to deep water in the area of the permitted dock that have been approved by the Department of Environmental Protection. There was a dispute in the evidence as to whether marking the channel that has served this area as the access route to deep waters would be appropriate and whether such marking would create a navigational hazard. The conflict in the evidence presented is resolved by concluding that the marking of the channel that serves as the navigation access route for boats that will use the permitted dock is appropriate, will aid navigation, and will not create a navigation hazard. This conclusion is reached, in part, because the channel is well defined by its long-term use and connects with the channel that is parallel to the shoreline at a known point.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which conditionally denies Building Permit Number 9320003962, but which authorizes Monroe County to issue that permit once the access channel to deep water has been properly marked and approved by the Department of Environmental Protection. DONE AND ENTERED this 25th day of October, 1994, 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 25th day of October, 1994.
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Max and Anne Makowsky (Respondents Makowsky) are the owners of real property located at Lot 5, Block 35, Venetian Shores Subdivision, Plantation Key, in unincorporated Monroe County, Florida. Respondents Makowsky's property is located in the Florida Keys Area of Critical State Concern. On November 20, 1992, Monroe County, Florida (Respondent County) issued a building permit, Building Permit No. 9230008125, to Respondents Makowsky. The permit authorized Respondents Makowsky to construct and place on their property a boat ramp which measures six feet by thirty feet. Petitioner received a copy of the Building Permit from Respondent County on November 24, 1992. Submerged lands adjacent to Respondents Makowsky's property are owned by the State of Florida. The boundary between the State's submerged lands and Respondents Makowsky's property is the mean high water line. Twenty feet of the proposed boat ramp would extend below the mean high water line. The twenty feet would lie over submerged lands. Chapter 9.5, Monroe County Code, contains Respondent County's Land Development Regulations. Section 9.5-345(m) contains the environmental design criteria applicable to submerged lands in Respondent County. Section 9.5-345(m) provides in pertinent part: All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * * No structure shall be located on sub- merged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water z depth of at least minus four (4) feet exists. In the permit application, Respondents Makowsky provide that the intended use for the ramp is to launch a windsurfer and a small inflatable boat or dinghy. Respondents Makowsky's dinghy has a motor with a shaft which extends two and one-half feet below the boat's water line. As the proposed boat ramp would allow access to the water via watercraft, the term "docking" facility," as used in Section 9.5-345(m), is applicable to Respondents Makowsky's proposed ramp. The submerged land adjacent to Respondents Makowsky's property is very shallow and heavily populated by sea grass, i.e. turtle grass. The turtle grass areas serve as nursery grounds and provide food and shelter for juvenile fish and invertebrates. These habitat values increase when coupled with the mangrove fringe (the roots of mangroves) located along the area. The mangrove roots also provide food and shelter for the juvenile fish and invertebrates. The turtle grass would be adversely impacted by the ramp itself if the proposed ramp was approved and constructed. The structure itself would shade out the needed sunlight to the grasses underneath the boat ramp, causing those grasses to die. Also, the use of the ramp to dock small boats would adversely impact the turtle grass. The bottom of the submerged land is a very loose, calcarious substrate. Launching a boat would cause the sand to "kick up" (lift up). When the sand comes down, it would settle on the turtle grass and smother it because there would be no way for the turtle grass to clean itself. Further, using a motorized boat, as Respondents Makwosky's, would cause "prop dredging" to occur, harming the turtle grass. In "prop dredging," the motor's propeller would destroy the grasses directly by tearing them up or destroy the grasses over a period of time through siltation after churning up the sand from the substrate. The mean low water depth, i. e., the average mean low tide, at the terminal end of the proposed ramp is less than four feet. In the permit application, the depth at the end of the ramp is indicated to be zero feet mean low water. Petitioner estimates the water depth at low tide as between one foot and two feet. The proposed ramp site is not located at a channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Respondents Makowsky have boat access through a boat basin approximately 320 feet to the southwest of their property. The boat basin is located in their Subdivision. A slip in the boat basin is assigned to Respondents Makowsky and they are entitled to use it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order DENYING Monroe County Permit No. 9230008125. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 2nd day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1317DRI Petitioner's proposed findings of fact 1 - 13 have been adopted in substance, although not verbatim, in this recommended order. COPIES FURNISHED: Bob Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of The Governor 1601 Capitol Tallahassee, Florida 32399 Gregory C. Smith, Esquire Governor's Legal Office 209 The Capitol Tallahassee, Florida 32399-0001 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen Brodeen Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie Gehres Assistant General Counsel Department of Community Affairs Marathon Regional Service Center Suite 212 2796 Overseas Highway Marathon, Florida 33050 Max and Anne Makowsky 1900 Glades Road, Suite 245 Boca Raton, Florida 33431 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33041-1117 Bob Herman, Director of Growth Management Monroe County Regional Service Center 2798 Overseas Highway Marathon, Florida 33050-2227
The Issue The issue for disposition in this case is whether Respondent has implemented an agency statement that meets the definition of a rule, but which has not been adopted pursuant to section 120.54, Florida Statutes.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Board) is charged with the management of state lands, including sovereign submerged lands. § 253.03(1), Fla. Stat. The Department of Environmental Protection (Department) is charged with the duty to “perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to which is or will be vested in the Board of Trustees of the Internal Improvement Trust Fund.” § 253.002(1), Fla. Stat. The City of Titusville operates a municipal marina, which includes a 205-slip docking facility for mooring of commercial and recreational vessels (Marina), on sovereignty submerged lands leased from the Board. Petitioner owns a Florida-registered vessel which he keeps at the Marina pursuant to an annual mooring/dockage agreement. On June 9, 2009, the City of Titusville and the Board entered into a “fee waived” lease renewal and modification for a parcel of sovereignty submerged land in the Indian River (Lease). The Lease allows the Marina to operate “with liveaboards as defined in paragraph 26, as shown and conditioned in Attachment A, and the State of Florida Department of Environmental Protection, Consolidated Environmental Resource Permit No. 05-287409-001, dated December 31, 2008, incorporated herein and made a part of this lease by reference.” Paragraph 26 of the Lease provides that: 26. LIVEABOARDS: The term “liveaboard” is defined as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. If liveaboards are authorized by paragraph one (1) of this lease, in no event shall such “liveaboard” status exceed six (6) months within any twelve (12) month period, nor shall any such vessel constitute a legal or primary residence. On or about July 31, 2015, Petitioner and the City of Titusville entered into the annual contractual mooring/dockage agreement, paragraph 4 of which provides that: 4. LIVEABOARDS: For the purposes of this Agreement, the term “liveaboard” is defined herein as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. Pursuant to requirements of the City’s Submerged Land Lease with the State of Florida, no vessel shall occupy the Marina in this “1iveaboard” status for more than six (6) months within any twelve (l2) month period, nor shall the Marina Facility constitute a legal or primary residence of the OWNER. Petitioner asserts that the alleged agency statement regarding “liveaboard” vessels “unreasonably and arbitrarily denies me the unrestricted right to stay on my vessel by limiting the number of consecutive days during which I may occupy the vessel,” and that “[t]he Board’s non-rule policy denies me the unrestricted freedom to enjoy my vessel as a second home.”
