The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The respondent Mariner Properties, Inc., also referred to herein as the "applicant", is the owner of South Seas Plantation, a vacation resort located on Captiva Island. This resort development comprises some 300 acres, with two miles of gulf-front beaches and four miles of bayfront. Located on the northern end of the Island is an existing large yacht basin or marina with facilities for docking boats up to 100 feet in length. While this marina does have slips for about eight small boats (under 24 feet in length), the facility is not well suited for the docking of small boats because of the height of the docks. Fueling services are available at this marina and an active search and rescue service operates out of the marina, with no charge to boaters in distress. A smaller boat basin exists on the southern portion of the Island, which basin was enlarged by the applicant pursuant to a permit issued by DER in 1975. The applicant has also been granted a permit to construct boat docking facilities within the small boat basin. Finger slips for about 43 small boats - - up to 24 feet in length, are planned, but construction has not yet begun. The small boat basin will not have fueling facilities for the boats. If the requested permit is granted, the rescue service which operates out of the larger yacht basin plans to dock one of its service boats in the small basin. The small basin will also serve as a refuge area for small boaters during a storm or inclement weather. In May of 1977, Mariner Properties, Inc., submitted its application to the DER to modify an existing permit by dredging an access channel to connect its small boat basin to the waters of Pine Island Sound. In its present modified form, the applicant requests a permit to maintenance dredge a channel 250 fee long, fifteen feet wide, to a depth of -3.0 feet, mean low water. Approximately 195 cubic yards of material will be excavated to construct this channel and the spoil will be unloaded on an upland area. The project will involve the destruction of almost 4,000 square feet of seagresses. Mr. Kevin Erwin, an environmental specialist with the Department of Environmental Regulation, made site inspections and performed a biological assessment of the area as it relates to the proposed project. It was his conclusion and recommendation that the application be denied based on the expected significantly adverse immediate and long-term impacts upon water quality and marine resources. Mr. Erwin was concerned with the elimination of almost 4,000 square feet of productive vegetated estuarina bottoms. Seagrasses provide an essential habitat to many marine species, act as an important nursery and feeding ground for young fish and shrimp, stabilize marine bottoms and contribute nutrients to the foodweb. The witness further felt that there was a potential for water quality violations within the channel. Mr. Erwin did observe cuts or propeller scars in the grass beds adjacent to the proposed channel. Such cuts or scars take a long period, up to fifteen years, to heal. He felt that boat traffic to and from the small boat basin should be restricted by a marked easement, as opposed to a dredge channel. Mr. Erwin's District Manager, Phillip R. Edwards, reviewed the subject application and observed the area in question. It was his oral recommendation to Tallahassee that the permit be granted. Mr. Edwards observed the seagrass cuts in the area adjacent to the proposed dredging project and concluded that more damage would result without a channel. While Mr. Edwards agreed that a potential for water quality standards existed, he felt that a channel would minimize the overall damage caused by boats continuing to travel over the adjacent seagrass areas. Mr. Forrest Fields, an environmental specialist with DER, reviewed the present application and Mr. Erwin's biological assessment of the area. He did not concur with Erwin's conclusion regarding violations of water quality standards, and felt that the applicant had given reasonable assurances to the contrary. Mr. Fields was of the opinion that a minimal channel would be less damaging to grass beds than the uncontrolled ingress and egress of boats utilizing the small boat basin. The public interest concerns of the basin being opened to the boating public and the basin being used by a rescue service without charge to boaters in distress were also expressed in the notice of intent to issue the permit prepared by Mr. Fields. Mr. Ross McWilliams, an environmental specialist with DER who reviews the work and recommendations of Mr. Fields, also recommended that the permit application be granted. Mr. McWilliams balanced the definable public loss which would ensue from the elimination of the 4,000 square feet of grass beds against the public benefit to be gained for the availability of the project to the boating public and the operation of a marine rescue service form the small boat basin. It was his conclusion that the proposed project would not be contrary to the public interest. A considerable portion of the testimony of this proceeding was devoted to the issue of whether a previous channel existed on the proposed site. Taken as a whole, the evidence establishes that the area which the applicant seeks to deepen is presently deeper than the surrounding grass flats. Aerial photographs received into evidence indicate by a straight while line some human activity and that the area in question has been used as a channel. All expert witnesses agreed that at least the shorewared 20 to 25 feet of the area appeared to have been disturbed. It could not be conclusively determined whether and when a channel had been dredged and, if so, the extent of the same. It is clear, however, that the specific area had been used as an access channel for the small boat basin in question. The area over which the applicant seeks to dredge is a shallow grass flat inhabited by turtle grass (Thallasia) and Cuban Shoal weed (Halodule), and is a very productive area in the marine ecosystem. The waters are within the Pine Island Sound Aquatic Preserve, A Class II body of water. No rules, regulations or management plan have been promulgated by the Department of Natural Resources for the Pine Island Sound Aquatic Preserve. The proposed channel is to be of a "box-cut" design with a flat bottom and vertical walls. Such a design is likely to create the need for frequent maintenance due to the possibility that the soft sides will slough inward. If further maintenance dredging becomes necessary, a permit for the same from the Department of Environmental Regulation would be required. If granted authority, the applicant would accomplish the dredging by utilizing either the "mud cat" type of dredge or a clam shell dragline mounted on a barge. Turbidity curtains will used to minimize the effects of loosening the bay bottoms and proliferation of silt by the dredging operation. All material excavated from the proposed channel will be deposited on an upland site. The petitioners in this cause either own or manage waterfront property within the Pine Island Sound Aquatic Preserve, and utilize the waters thereof. They have adequately demonstrated their substantial interest in the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to Mariner Properties, Inc. a permit for the channel dredging project to the conditions set forth in Section III (B) of the Department's Proposed Order of Issuance executed on November 0, 1978, and subject to any forms of consent which may be required under Florida Statutes, Section 253.77. Respectfully submitted and entered this 11th day of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman Casey J. Gluckman 5305 Isabelle Drive Tallahassee, Florida 32301 Kenneth G. Oertel Truett and Oertel, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32301 Ray Allen Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Secretary Jake Varn Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SANIBEL-CAPTIVA CONSERVATION FOUNDATION, ROBERT RAUSCHENBERG and FLORIDA AUDUBON SOCIETY, Petitioner, vs. CASE NO. 78-2422 DEPARTMENT OF ENVIRONMENTAL REGULATION and MARINER PROPERTIES INCORPORATED, Respondent. / By the Department:
The Issue The ultimate issue to be resolved in this proceeding is whether FLWAC should grant or deny permission to develop pursuant to the amended development order and, if granted, whether conditions and restrictions should be imposed. SFRPC contends: (1) that the City was without authority to enter an amended development order, (2) that the amended development order does not satisfy conditions which FLWAC previously imposed upon the development, (3) that prior orders of FLWAC are contrary to law, and (4) that a proposal respecting the placing of additional boat slips on the north side of Watson Island constitutes a substantial deviation from earlier development orders contrary to the City's findings in its amended development order. The City of Miami contends that FLWAC has already resolved the issues raised by SFRPC, that the appeal process is therefore improper, and that the placing of additional boat slips on the north side of the island does not constitute a substantial deviation from prior development orders.
Findings Of Fact The Findings of Fact set out in Paragraph 1 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 11. The Findings of Fact set out in Paragraph 2 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, Hearing Officer's Exhibit 1, and Joint Exhibits 1 through 13. The Findings of Fact set out in Paragraph 3 of the Recommended Order are based upon Joint Exhibits 16, 17 and 19. The Findings of Fact set out in Paragraph 4 of the Recommended Order are based upon Joint Exhibit 19. The Findings of Fact set out in Paragraph 5 of the Recommended Order are based upon Joint Exhibits 25, 26, 27 and 28. The Findings of Fact set out in Paragraph 6 of the Recommended Order are based upon Joint Exhibits 29 through 33, 36 through 40, and 43. The Findings of Fact set out in Paragraph 7 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, and Hearing Officer's Exhibits 1 and 2. The Findings of Fact set out in Paragraph 8 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibits 11, 19, 32 and 43. The Findings of Fact set out in Paragraph 9 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 32. The Findings of Fact set out in Paragraph 10 of the Recommended Order are based upon the testimony of the witness Dodrill; Hearing Officer's Exhibit 1; and Joint Exhibits 1, 14, 24, 29, 34 and 36. ENTERED this 17th day of May, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1983. COPIES FURNISHED: All parties of record.
The Issue Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
Findings Of Fact Petitioners are seeking a permit to cut a channel from a boat basin to the Caloosahatchee River. The basin, which has been constructed, is located approximately forty to sixty feet inland from the Caloosahatchee River. Petitioners are also seeking a permit to operate the proposed basin. The basin would serve as a recreational facility for a trailer park. The proposed basin has dimensions of approximately 140 feet by 148 feet. It is surrounded by a concrete seawall. The basin would provide facilities for approximately 20 boats no larger than twenty-two feet in length. The trailer park is located across the street from the river and basin. The street is approximately 600 feet from the river. Sewage treatment and water treatment plants for the trailer park are located in the corners of the park farthest from the river. The basin is surrounded by vegetation. All water going into the basin would be filtered through grass. The project is located approximately one mile east of the City of Alva, fourteen miles from the City of Tice, and seventeen miles from the City of Ft. Myers. The basin is eight and one-half miles up river from Lee County's pumping stations, which are used to pump water from the river to wells which augment the county's water supply. The Caloosahatchee River was channelized approximately twenty years ago. It no longer follows a natural course. The river is a part of the Cross Florida system connecting with Lake Okeechobee. The proposed boat basin would not enhance the waters of the Caloosahatchee River. The project could reasonably be expected to be a source of water pollution unless rules and regulations, which Petitioners have adopted, are scrupulously followed. These rules and regulations are set out in Figure 3 attached to Petitioner's Exhibit 7. If the rules and regulations are followed, the basin would not be a source of pollutants. There is no evidence in the record to the contrary. If the rules and regulations are not followed then there is a likelihood that the basin will be a source of pollutants, and that the pollutants would be discharged into the Caloosahatchee River. Petitioners do not object to having the proposed rules and regulations made a part and a condition of any permits issued by Respondent.
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
