Recommendation Based on the foregoing, it is hereby recommended that a final order be entered, granting permit #05-134042-4, with the following amendments: Where the permit reads, "To install an additional 64 boat slips . . .", change to "To install an additional 21 boat slips, for a total of no more than 46 boats . . ." Add to the specific conditions attached to the permit, paragraph 7., to read: "The breakwater to be installed at the entrance of the northern basin will be angled outward along a line that, if extended, would intersect with the southeastern corner of the property on the north shore of the basin." DONE and RECOMMENDED this 10th day of November, 1988, in Tallahassee, Florida. MARY CLARK 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 10th day of November, 1988. COPIES FURNISHED: James H. Walker, Jr. 6175 North Harbor City Blvd. Melbourne, Florida 32940 Harry and Vivian Stahler Donald and Mark Stahler 6190 North U.S. #1 Melbourne, Florida 32940 Vivian Garfein, Esquire Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Bldg. Tallahassee, Florida 32399-2400 Dale Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue At issue herein is whether or not the Petitioner, Kelly Boat Service, Inc.'s and Cape Kennedy Charter Boats, et al's activities fall within the admissions tax liability imposed by Section 212.04, F.S. (1973). Based upon the pleadings filed herein, the documentary evidence introduced during the course of the hearing, the other evidence of record including the arguments of counsel, the following relevant facts are found.
Findings Of Fact In the instant matter, the Department of Revenue issued two sales tax assessments. The first such assessment is against Cape Kennedy Charter Boats and covers the audit period of March 1, 1973, through February 29, 1976. The Department also assessed Kelly Boat Service, Inc., in a series of three separate assessments covering the audit periods August 1, 1970, through January 31, 1976. Based on such assessments, a tax liability resulted in the amount of $25,072.37. Of this amount, $10,000 was paid by the tax payer on July 21, 1976 (Respondent's Composite Exhibit No. 1). The remaining tax liability plus interest which has accrued from July 21, 1976, is outstanding and continues to accrue. During the course of the hearing, the parties agreed that the specific liabilities as set forth in the assessment were not at issue. Rather, Petitioner solely challenged the legal authority of the Department of Revenue to impose the assessments in question. The Petitioners are owners and operators of a fleet of deep sea fishing boats in and around Destin, Florida, which, for a fee, carry individual fishermen to certain fishing banks which lie beyond the three-league limit in the Gulf of Mexico. While there, the Petitioners sell food and drinks to the fishermen and rent them fishing equipment. The fishing is done at the snapper banks in the Gulf of Mexico or in the vicinity of those banks. The fishing equipment and tackle used on these trips are mainly used beyond the three-league limit in the waters of the Gulf of Mexico; and most, if not all, of the food and drinks sold at the galley of the refreshment stand on the boat was outside the three-league limit of the State of Florida. In an earlier summary final judgment, the Circuit Court of Appeal declared, as authorized by Chapter 86, Florida Statutes, 1973, the liability of Kelly Boat Services, Inc., for payment of the admissions tax by Section 212.04, F.S., 1973, from which the Department of Revenue filed an appeal. In that decision, the Court held that Kelly, whose boats take on passengers at Destin for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August, 1970, and the first day of August, 1973, the period in which the Department demanded the production of Kelly's records for audit. Section 212.14(6), F.S., 1973. Kelly cross-appealed and urged that its activities were not subject to the tax, citing Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App. 1st 1968). In its decision, the First District Court of Appeal in Dept. of Revenue v. Kelly B Boat Service, Inc., 324 So.2d 351 (Fla. 1976), indicated that the trial court was correct in its reading of its decision in Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App 1st 1972), Cert. Denied, 262 So.2d 682 (Fla. 1972), Cert. Dismissed, 287 So.2d 93 (Fla. 1974), and in hold that Kelly's commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The Court noted that the trial court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by Subsection 212.14(6), F.S., 1973. The decision goes on to read that the State is not foreclosed by reason of the Court's 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise to assert that on the facts evidenced by record, Kelly should satisfy its full tax liability incurred three years prior to August 1, 1973. North American Company v. Green, 120 So.2d 603 (Fla. 1960); Jackson Grain Company v. Lee, 139 Fla. 93, 190 So. 464 (1939). Based on the above decision of the First District Court of Appeal, the Department's assessment, which the parties admit is factually correct, is valid both as to the August 1, 1970, through July 31, 1973, and the August 1, 1973, through January 31, 1976, audit periods. Since this matter has previously been adjudicated, the same is res judicata as to the legal validity of the Department's assessment. Further, since the assessment relative to Cape Kennedy Charter Boats is based upon the same factual circumstances and legal authority as the one against Kelly Boat Service, Inc., which was upheld as aforementioned in the case of the Dept. of Revenue v. Kelly Boat Service, Inc., supra, there is no factual challenge to the validity of the Department's assessment and there being no assertion by the Petitioner that any rules of law other than those enunciated by the District Court of Appeal in Dept. of Revenue v. Kelly Boat Service, Inc., supra, are applicable, such assessment must likewise be upheld. I shall so recommend. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Department of Revenue's assessment in the instant matter against the Petitioners be UPHELD. Additionally, in view of the Petitioners' letter of April 11, 1979, Petitioners' motion to treat this matter as a class action is hereby DISMISSED. RECOMMENDED this 31st day of May, 1979, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent, Thomas A. Baggett has been licensed by the State of Florida as a pilot in Tampa Bay for fifteen (15) years and at all times pertinent to this proceeding was licensed by the State of Florida as a pilot. On February 5, 1984, at about 0620 hours, while Captain Baggett was piloting M/V Triton C outbound from the Gardinier Wharf in Hillsborough County, Florida, the M/V Triton C ran aground outside the prescribed limits of CUT D in Tampa Bay on the east side. The M/V Triton C is a Liberian bulk carrier with an approximate length and width of 576.7 feet and 81 feet, respectively, with a gross tonnage of 17,823 tons. At the time of grounding, the M/V Triton C had a forward draft of 29 feet, 11 inches and an aft draft of 30 feet and 1 inch. The M/V Triton C was experiencing no engine or navigational equipment problem before it ran aground. All aids to navigation, including ranges and buoys, were in place and working properly at the time of the grounding. The M/V Triton was travelling at a speed of 11.7 knots. Range lights, when properly aligned, provide a way for the pilot or anyone navigating a vessel to know the vessel is in the center of the channel. On the morning of February 5, 1985, shortly before the grounding of the M/V Triton C, Captain Baggett gave orders for the turn from CUT E into CUT D, or from a heading of 198 degrees to a heading of 213 degrees. Captain Baggett ordered the wheel 20 degrees to starboard and then eased to 10 degrees. Captain Baggett then ordered the quartermaster to midship the wheel and steady the vessel on 213 degrees. He gave no instructions to the quartermaster concerning the use of the range lights for navigating the center of the channel. At this point the confusion begins. Captain Baggett testified that the M/V Triton C steadied up on 213 degrees, an appropriate course for the transit of CUT D, while he was present and he observed the M/V Triton C as being on the ranges for about 2 minutes before going into the chart room. As he stepped back into the chart room, he glanced at the compass and observed that the vessel was on a heading of 213 degrees. Captain Baggett gave no further instructions or orders other than "hard to starboard" when he came out of the chart room 15-20 seconds later and noticed the bow swinging to port, the rudder indicator showing 20 degrees rudder and the ranges being already opened. Captain Baggett testified that upon giving the order "hard to starboard" the quartermaster pulled the wheel and went "hard to port" and the vessel almost immediately went aground. The mate and quartermaster tell a different story. The master was below and not present on the bridge at the time of grounding. The mate testified that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees, and that Captain Baggett remained in the chart room for 40 seconds to 1 minute and came out as the vessel went aground. The quartermaster testified that Captain Baggett went into the chart room immediately upon the vessel steadying up on 213 degrees, and did not stay to watch the course or range for 2 minutes. He further testified that Captain Baggett was in the chart room for 5-6 minutes; that he came out of the chart room as the vessel went aground; and, Captain Baggett gave no order of "hard to starboard". The quartermaster at the time of the grounding was Maheswaran Gnanasundran and the mate was Siburs Ioannas. As evidenced by the depositions, both were foreign; neither spoke English and each required an interpreter at the deposition. The master of the M/V Triton C on the day of grounding was Stamatios Stanou, a citizen of Greece, and required an interpreter for his deposition. Captain Baggett experienced a communication problem with quartermaster Gnanasundran in the beginning of the turn out of CUT E to CUT D, and earlier with another quartermaster at the beginning of the turn out of Hilisborough A CUT into Hillsborougn C CUT who was on duty just prior to quartermaster Gnanasundran. The M/V Triton C was at a heading of 206 degrees immediately after grounding and did not move significantly from that heading while grounded. Both the mate and the quartermaster testified that the M/V Triton C, after steadying up, stayed on the course heading of 213 degrees during the entire time and was on the same course heading when the vessel went aground. The mate testified that as the M/V Triton C began to run aground it began to list to the right, and its heading as it finally came to rest aground was 206 degrees. The master of the M/V Triton C testified that the wind was out of the northwest at 15 knots, with full tide, and the current being with M/V Triton C at about 2 knots. Captain John C. Hanson, an investigator for petitioner, testified that at the time of grounding, based on tidal information and weather reports, the wind was out of the northwest and there was an ebb tide running in a southerly direction which would tend to set the M/V Triton C in a southerly direction to the east of CUT D. Captain Hanson further testified that these conditions would have an effect on navigation. Captain Baggett testified that there was an ebb tide in a southwest direction and that it would tend to set to the southwest but at that point in time, it would have had very little effect on the M/V Triton C. Therefore, he did not make any allowances for the tide, wind, or a combination of them. Petitioner's Exhibit No. 3 shows the mean lower low water depth outside of the confines of the channel in the area of grounding to be 24 feet to 25 feet. Captain Hanson testified that the chart was current but that the depth of the water in a Particular area could be deeper, depending upon tides and winds. Captain Baggett testified that soundings taken on February 5, 1985, during the morning of grounding, put the depth of the water at the bow (point of grounding) and stern to be 25 feet and 37 feet, respectively and, that he visually observed, after daylight the stern of the vessel as being located in the ship channel of CUT D. The ship channel in CUT D has an approximate width of 400 feet with shoaling on both sides. Captain Hanson boarded the M/V Triton C 3 days after the grounding and testified that he plotted the position where the vessel went aground by taking "crossbearings of fixed structures, (no floating aids) and one radar range to one of the radar structures." Captain Hanson plotted the position of the M/V Triton C to be on the east side of CUT D, at a point 450 feet from the centerline of the CUT D approximately 1325 yards from a midpoint between buoys 1E and 2E. For an exact position see Petitioner's Exhibit No. 3. The crossbearings used to locate the exact position of the M/V Triton C are shown on the chart on the right side of Petitioner's Exhibit No. 3. The left side of Petitioner's Exhibit No. 3 is an enlargement of CUT D prepared by Captain Hanson showing the various courses the M/V Triton C could have taken from a point abeam of buoys 1E and 2E to the position of grounding based on the speed of the M/V Triton C at 11.7 knots. Petitioner's Exhibit No. 3 demonstrates that if the point of grounding was 450 feet from the centerline of the channel, as Captain Hanson testified, and, the M/V Triton C grounded on the heading of 206 degrees, then, at that heading, the stern of a vessel 576.7 feet long could not have reached the channel. Captain Hanson's testimony concerning his method of locating the position of the M/V Triton C, the crossbearing used and the calculations went unrebutted. With a vessel drafting 29 feet 11 inches forward and the point of grounding being 450 feet from the centerline of the channel, the depth of the water outside the confines of the channel along the heading taken by the M/V Triton C was deeper than 25 feet or the grounding would have occurred sooner and at a point closer to the east bank of CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the quartermaster that the M/V Triton C steadied up on 213 degrees after making the turn from CUT E to CUT D and steered that course for five to six minutes while Captain Baggett was in the chart room is incorrect as to how long Captain Baggett was in the chart room, because the vessel would have travelled beyond the point of grounding in 5 to 6 minutes. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the mate that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees and that the vessel went aground within 40 seconds to 1 minute while Captain Baggett was still in the chart room is incorrect as to how long Captain Baggett was in the chart room because the vessel could not have travelled to the point of grounding in 40 seconds to 1 minute from the time it made the turn out of CUT E into CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of Captain Baggett that the vessel steadied up on a heading of 213 degrees in the center of CUT D and that he viewed the ranges in line for 2 minutes before going to the chart room and that "almost immediately" upon coming out of the chart room 15 to 20 seconds later the vessel went aground was incorrect as to how long he stayed after the vessel steadied up before going into the chart room because in that time frame the turn, causing the vessel to go aground would have been so sharp the vessel would have gone aground at a heading significantly less than 206 degrees. The most believable evidence demonstrates that Captain Baggett was in the chart room 2-3 minutes prior to grounding. Captain Baggett went into the chart room to make his time and distance calculations because light was more readily available. Captain Baggett could have made the time and distance calculations without going into the chart room. While Captain Baggett was in the chart room, he was facing away from the chart room entrance and did not look at the rudder indicator, the ranges, or otherwise determine if his orders were being properly carried out. Captain Baggett's expertise as a pilot was available to the mate and quartermaster while he was in the chart room had either of them been aware of a problem and requested his assistance. But, his expertise as a pilot was not totally available to the vessel due to his position in the chart room. Where the crew is unfamiliar with the harbor and its lights and there is a language problem, courses are usually given on compass rather than instructions on the range lights.
The Issue Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state- registered elevator company that specializes in installing elevators and wheelchair lifts. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit. When he first spoke with Mrs. Tobin two years ago, Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative. Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure. A short time after she gathered these responses, Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I. Mr. Carron also attended the meeting and gave Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements." Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides." Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at Burgundy I. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred." A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7 Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project." Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements: Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners. SUMMARY OF THE EVIDENCE Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act. DONE AND ENTERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.
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 issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, 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 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
The Issue Whether Petitioners Kay Rankin and Mike Beard have standing? Whether the project by Mahogany Mill Owners Association, Inc. ("Mahogany Mill"), to remove two existing finger piers and construct three new finger piers and two boat lifts (the "Project") is exempt from the need to obtain an Environmental Resource Permit ("ERP") from the Department of Environmental Protection (the "Department")? Whether the Project qualifies for authorization from the Board of Trustees of the Internal Improvement Fund (the "Board of Trustees") to use sovereign submerged lands?
Findings Of Fact Mahogany Mill Pond and the Channel Located in Pensacola, Florida, Mahogany Mill Pond is connected by a channel (the "Channel") to Chico Bayou. The bayou provides passage to Pensacola Bay and the bay, in turn, is adjacent to the Gulf of Mexico. Prior to the dredging of the Channel in the 1950s to connect the pond and the bayou, the pond was used to store logs as part of a logging operation. After the dredging activity, the storage of logs in the pond ceased. The pond began to serve as a hold for sailboats and over the decades since, the Channel has been used by sailboats and powerboats alike to make their way to the bayou and onward to the bay and the open waters of the Gulf. Currently, Mahogany Mill Pond is "one of the few places left in Pensacola where you can have hurricane hold for deep water sailboats." Hr'g Tr. 231. "Hurricane holds" are safe places to moor a vessel in times of tropical storms and where, in the words of Petitioner Rankin, "you can get your sailboat out of the weather." Id. The petitioners in these four consolidated cases all own deep draft sailboats which they moor in Mahogany Mill Pond. The Channel is bordered to the south by a spit of land that juts into the bayou. The spit is approximately 600 feet long, and its vegetation line (estimated to be the mean high water line by an environmental consulting business) is roughly 60 feet from the Project. The tip of the spit is opposed in the bayou by the Palm Harbor Marina. The marina is a busy one with nearly every one of its slips occupied, as shown by photographic evidence. The marina is about the same distance from the spit as the Project is from the spit. There are shoals in the area and they exist between the spit and the Project. Whether an excursion originates in the pond or the Channel, boaters seeking egress to the bayou, the bay and the Gulf must make their way through the Channel alongside the spit, and around its tip in the vicinity of the marina, an area that includes shoals. Likewise from the bay or bayou, any boat headed for the Channel or the pond must make its way through the narrow area of the marina across from the spit, around the spit, and through the shoals in and near the Channel so as to not run aground. Despite a "quiescent environment with a little bit of intertidal flow" (Hr'g Tr. 149), the Channel requires dredging "probably every 10 years," id., to maintain its navigability. It has been dredged "a couple of times in the . . . 20 years," id., Petitioner Kriegel has lived in the area. The last time the Channel was dredged was six or seven years ago. To the best of Petitioner Rankin's memory, the cost was about $16,000. Dredging costs are borne by the members of the local homeowners association. The Channel's shallowness in some spots is a navigation concern for sailboats and contributes to the Petitioners' assessment of the Channel as "narrow" and "constricted." Despite shallowness and the presence of the shoals, as well as the tight configuration created by the spit, the Project's presence in the Channel does not create a navigation hazard for powerboats that have two engines. This is due to the ability of powerboats to maintain position during a maneuver. As explained by Petitioner Kriegel, "[A]s a result of [having two engines], you can push one side of the boat forward and pull the other side of the boat backwards and pivot the boat without making any headway." Hr'g Tr. 152. A powerboat's ability to maintain position aids maneuverability, particularly in constricted waterways. Sailboats, on the other hand, cannot maintain position while they turn. In order for a sailboat to execute a turn while under sail, it must be moving through the water largely because their keels create lateral resistance. When not under sail, sailboats are typically not able to maintain position while turning because they are usually equipped with only one engine. A structure in a constricted waterway may be an obvious navigational hazard to any boat or it may be a hazard to some boats but not others. More to the point, a structure that extends into a waterway can be a navigational hazard to a sailboat because of the sailboat's inability to maintain position during a turn while at the same time it is not a hazard for a powerboat that enjoys superior maneuverability based on its capability to hold position during a pivot. The Parties Petitioners Kriegel, Baars, Ed and Kay Rankin, and Beard are individual citizens who reside in Escambia County. They all own property in the vicinity of Mahogany Mill Pond, and they all moor their deep draft sailboats in the hurricane hold that is Mahogany Mill Pond. Each has extensive experience navigating the pond, the Channel, Chico Bayou, Pensacola Bay, and the open waters of the Gulf of Mexico. Mahogany Mill is a Florida homeowners association. It has been substituted in this proceeding as a respondent in the place of Mahogany Mill, LLC, the entity on whose behalf the application for the Project was submitted. The Department is the agency of the State of Florida that administers the provisions of section 403.813(1)(b), Florida Statutes (2012),1/ and Florida Administrative Code Rule 62- 346.051(5)(a) (which relates to exemptions from environmental resource permitting in Northwest Florida) and, on behalf of the Board of Trustees of the Internal Improvement Fund, if a project is shown to qualify for an exemption from permitting, to authorize the use of sovereign submerged lands pursuant to Florida Administrative Code Rule 18-21.005(1)(b), including compliance with rule 18-21.004(7)(g). The Application and the Pre-construction Mooring Pilings The Application for the Project was submitted under cover of a letter from Wetland Sciences with a date of October 5, 2012. The letter lists the applicant as "Mahogany Mill LLC, c/o Robert Montgomery." In the body of the letter, it states that the Application was submitted "on behalf of Mr. Robert Montgomery." Mahogany Mill Ex. 1. The October 5, 2012, letter is signed by Jason Taylor. Wetland Sciences employs Mr. Taylor as an environmental specialist. Mr. Taylor holds a four-year degree from the University of West Florida and has been employed by Wetland Sciences since 2004. During that time, he has been engaged in marine permitting and has participated in the permitting of several hundred projects. In conducting the permitting of the Project, Mr. Taylor interacted with both DEP personnel and personnel from the county. In the discussions, Mr. Taylor was careful to address compliance with any regulations related to the Project's water-ward extension. His main concern was with the County Code because it is slightly more stringent than DEP regulations. He informed Mr. Montgomery that a variance from the county might be necessary but that proved not to be the case. "[W]e could actually construct [the Project] . . . as long as it stayed within the same footprint as what was currently there, which extended . . . 24 feet . . . into the water body." Hr'g Tr. 89-90. The "Plan View of Existing Site Conditions" drawn by Mr. Taylor and submitted as an attachment to the Application (see page 2 of 6 attached to Mahogany Mill Ex. 1) shows that at the time of the submission the Project site encompassed two existing mooring piles (the "Preconstruction Mooring Pilings") and two finger piers. The Preconstruction Mooring Pilings served as bow or stern lines for smaller vessels that would dock alongside the two finger piers. The finger piers extended approximately 12 feet offshore. In contrast, the Preconstruction Mooring Pilings were at a point that extended twice as far into the Channel, i.e., 24.0 feet offshore. In Mr. Taylor's opinion, the water-ward extent of the location of the Preconstruction Mooring Pilings justified a 24-foot extension of the Project into the waterway. Some of the exhibits attached to the Application were scaled from an aerial. Others were supported by measurements taken by Mr. Taylor in the field. The location of the Preconstruction Mooring Pilings 24 feet offshore were among the locations supported by field measurements taken by Mr. Taylor at the site of the Project. The Project The Project is shown in the application to consist of two 24-foot by three-foot finger piers (the "Outside Piers") and a third finger pier between the other two (the "Middle Pier"). Like the Outside Piers, the Middle Pier extends 24 feet into the Channel, but it is six feet wide (twice as wide as the Outside Piers). Two uncovered boat lifts, 12 feet wide each, are also part of the Project. The points of the boat lifts that extend the farthest from shore are within the utmost extension of the piers, that is, within 24 feet from the shore (the identical distance from shore as the Preconstruction Mooring Pilings). As described in the application (the "information submitted to the Department"), there is no part of the Project that extends beyond 24 feet from the shore, i.e., where the Preconstruction Mooring Pilings stood at the time of the application's submission. The width of the Project (from the corners of the Outer Piers) alongside the Channel is 36 feet. The distances to an "APPROXIMATE CENTER THREAD OF CHANNEL" (see the estimation in the "Close-Up Plan View of Proposed Activity," page 5 of 6 attached to the Application, DEP Ex. 2) are 20.5 feet from one Outside Pier, 18.1 feet from the Middle Pier, and 16.0 feet from the other Outside Pier. The total area of submerged lands preempted by the Project is 288.0 square feet. At the shore (where there is a seawall), the Project lies within 49.6 linear feet of shoreline owned by the applicant. The Project is on the side of the Channel across from the spit. The Project's side would be starboard of a sailboat returning to the pond from the bayou. It is also the side for a boat headed toward the pond that a vessel would be obligated to keep under boating "rules of the road" to avoid collisions or scrapes with a boat coming from the direction of the pond headed out of the Channel. The Veal Dock Next to the Project is a dock and boat lift owned by James Warren Veal (the "Veal Dock"). Mr. Veal has a 21-foot Cobia powerboat that he keeps on a boat lift supported by the Veal Dock. His boat, equipped with an outboard motor and moored in the boat lift of the Veal Dock, was shown in Mahogany Mill Exhibit 21 "to be sticking out a few inches more," Hr'g Tr. 110, than the stern and engine of Mr. Montgomery's boat while docked at the Project. At the time Mr. Montgomery's boat was photographed to produce Mahogany Mill Exhibit 21, it's stern extended "[r]oughly, ball park, a foot and a half," Hr'g Tr. 109, past the piling. The boat's engine extended another foot and a half toward the center thread of the Channel. When docked at the Veal Dock, Mr. Veal's boat (including the outboard motor off its stern) at its water-ward- most extension is referred to as a "limiting point" (see Hr'g Tr. 191), by the Petitioners. Extending farther out into the Channel than any other structure, boat or engine (including the Project) on the Project's side of the Channel, the limiting point created by a boat in the Veal Dock is what a sailboat swinging around the spit into the Channel must avoid in order to enjoy safe passage in the Channel. The Letter of Exemption and State-owned Submerged Land Authorization The Letter of Exemption locates the Project both by Parcel ID Number, as shown in local government records, and at the street address of 1263 Mahogany Mill in Pensacola, Florida. Its description of the Project is consistent with the description in the Application. See DEP Ex. 1. The Letter of Exemption verifies that the Project is exempt from regulatory review: Based on the information submitted, the Department has determined that the construction of the boatlifts and finger piers, [sic] is exempt, [sic] under paragraph 62-346.0512(5)(a), F.A.C., from the need to obtain a regulatory permit. Therefore, the Department grants an exemption for the proposed activity under paragraph 62- 346.051(5)(a), F.A.C., and Section 403.813(1)(b), F.S. Id. The Department's Letter of Exemption also authorizes the use of state-owned submerged lands for the Project by virtue of the Department's status as staff to the Board of Trustees: The Department has reviewed the activity . . . and has determined that the activity qualifies for a Letter of Consent under rule 18-21.005(1)9(c)2., F.A.C.[,] and section 253.77 of the Florida Statutes to construct and use the activity on the specified sovereign submerged lands, as long as the work performed is located within the boundaries as described herein and is consistent with [certain] terms and conditions . . . . Id., page 2 of 5 (the letter of consent incorporated in the Letter of Exemption). The Letter of Exemption (with the letter of consent incorporated) was issued on October 24, 2012. Statutes and Rules Regulatory Exemption Section 403.813(1) provides, inter alia, that a permit is not required for activities associated with "[t]he installation . . . of private docks, piers and recreational docking facilities . . . [provided they] . . . [s]hall not impede the flow of water or create a navigational hazard." § 403.813(1)(b)3., Fla. Stat. (emphasis added). The statue is implemented by rule 62-346.051. Among the activities listed in the rule that do not require an ERP are "the installation . . . of private docks, piers and recreational docking facilities . . . in accordance with Section 403.813(1)(b), F.S., [and its requirement that they not impede the flow of water or create a navigational hazard]." Fla. Admin. Code R. 62-346.051(5). State-owned Submerged Lands Authorization Section 253.77, Florida Statutes, prohibits a person from the use of sovereign or other lands of the state until the person has the required the form of consent authorizing the proposed use. Rule 18-21.005 implements section 253.77. The form of authorization required for the Project is a "Letter of Consent." See Fla. Admin. Code R. 18-21.005(1)(c)4. In addition, rule 18- 21.004(7) imposes general conditions for authorizations including obtaining the necessary letters of consent. Among the other conditions are that "[s]tructures or activities shall not create a navigational hazard." Fla. Admin. Code R. 18-21.004(7)(g). Good Faith Efforts at Compliance Mr. Montgomery and Mahogany Mill made deliberate and careful effort to comply with the applicable statutes and rules prior to the issuance of the Letter of Exemption. They hired a consulting firm with appropriate expertise in the permitting of docks. Their consultant worked with the county and the Department. Based on the information submitted with the application and the Department's preliminary review, it is no surprise that the Department found the Project qualified for a Letter of Exemption under the statutes and rules that provided an exemption from regulatory review and that authorized the use of state-owned lands. This is especially true given the care taken by Mr. Montgomery and his environmental consultant in seeking the exemption and in light of the Project's extension into the Channel at a point no more than the Preconstruction Mooring Pilings, i.e., 24.0 feet. Installation Without delay, Mr. Montgomery "contracted with a marine contractor to install the improvements [authorized by the Letter of Exemption]." Hr'g Tr. 69. The Project was constructed and its installation was completed in December 2012. Mr. Montgomery and Mahogany Mill heard no objection from any party while the Project was under construction. There were no objections voiced in the month or so afterward. The first objection was made known to Mahogany Mill when Mr. Kriegel visited Mr. Montgomery in mid-February 2013. The Challenges Mr. Kriegel was out of town when the Project was installed. He did not see the Project until mid-to-late February aboard his sailboat when he "had great difficulty in getting [the boat] back in [his] slip [in Mahogany Mill Pond]." Hr'g Tr. 169. Following his experience navigating the Channel in February 2013, Mr. Kriegel met with Mr. Montgomery. From Mr. Kriegel's perspective, the meeting was to no avail. The four petitions challenging the Letter of Exemption and the letter of consent were filed shortly thereafter. The Hearing Mahogany Mill's Prima Facie Case As the applicant for the exemption and the consent to use state-owned submerged lands, Mahogany Mill provided evidence that the Project is not a navigational hazard to powerboats. The evidence included a video of Mr. Montgomery on board a 38-foot powerboat (see Hr'g Tr. 44) smoothly navigating its way from the bayou around the spit, into the Channel and to the Project. The powerboat was piloted by Captain Ben Cranford, who has 12 years of experience navigating vessels through the area, including into Mahogany Mill Pond from the Channel. When asked at hearing about navigating the Channel while being videotaped, Captain Cranford replied, "I'm not having any [difficulty], at all." Hr'g Tr. 46. After the presentation by the Applicant of a prima facie case of compliance and immediately following the supportive case of the Department, Petitioners presented their cases. Petitioners' Cases The evidence presented by Petitioners established that sailboats have far less maneuverability than powerboats as a result of a number of factors. Inability to maintain position during a turn is one of them. Sailboats may be less maneuverable than powerboats because of hull and keel design as well, even when equipped with an outboard motor which typically has a single propeller. Sailboat maneuverability limitations may be exacerbated, moreover, by wind and other conditions, particularly in the summer when the prevailing direction of the winds tend to push off a sailboat. Mr. Kriegel related difficulty the three to four times since the construction of the Project that he has navigated a return to the pond in his sailboat. On those occasions, he brought his boat in under "better than ideal conditions" (Hr'g Tr. 171), due in part to facilitation of the sailboat's turns by a north breeze, the wind that typically prevails in winter time. On one day, he brought the boat in twice on a relatively high tide, another favorable condition. He "had to make two efforts to do it because [he] ran aground . . . the first time. And the second time [he] almost hit the structure." Id. Mr. Baars owns a deep draft sailboat that is "45'3", which includes . . . a Bowsprit." Hr'g Tr. 197. A bowsprit is a spar that extends forward from a vessel's prow to which the stays of the foremast are fastened. As of the date of the hearing, Mr. Baars had not attempted egress or ingress since the Project was installed. But he summed up his worry about the Project when Mr. Kriegel asked him on cross examination whether he thought he could safely navigate around the structure, "I'm concerned, other than trying to test it, I would not know. I mean, as I look down from my dock . . . it doesn't look too good." Hr'g Tr. 213. Like Mr. Kriegel, Mr. Baars has never collided with structures in the Channel but "came very close to the previous structures . . . [and safety] was always a concern when [he] came around the spit." Hr'g Tr. 221. Mr. Baars sailboat has also run aground in the Channel because of prevailing conditions that made maneuvering difficult. In his testimony, Mr. Rankin recollected that when the seawall was installed by a previous owner in 2001, the application showed eight pilings, all of which were "12-foot out." Hr'g Tr. 226. He has "bounced off and shoved off one of those pilings [the Preconstruction Mooring Pilings] before, getting around the corner." Hr'g Tr. 227. Mr. Rankin described his experience in navigating from the bayou through the Channel headed for the pond: . . . I've come in there, around that spit, at low tide, and run aground because the pass is so narrow you have to back up and find it. In the process of finding it, you sometimes have to power over it and that means you back up as far as you can and go full tip wide up to jump it. And in [the] process you're aiming straight for the problems of the piers where they are now. And I'm not saying I can't do it. I'm just saying . . . I'm afraid I'm going to hit it someday. It's that tight. It's that difficult. * * * So all of it [the shallowness, the shoals, the spit, the difficulty in maneuvering sailboats, the structures in the Channel], you've got to be moving. If you get stuck, then you have to cut -- you dredge that area and they dredged it as close to . . . the end of the spit. So it's very, cutting that corner, you're aiming straight at those docks or Mr. Veal's dock. And if I have to be powering over it, by the time I get over the hump, which is the end of the spit, then I have to turn. I can't be turning over the hump. * * * But I have pushed off -- my wife has pushed off one of the pilings. Hr'g Tr. 228-230. Ms. Simpson has navigated the deep draft sailboat owned by Petitioner Beard through the Channel numerous times over the past 20 years. She raced sailboats and participated in regattas so often that she "started racing sailboats in the women's regattas, where [she] captained and helmed [her] own boats." Hr'g Tr. 242. Compared to the three Petitioners who testified and the sailing population in the area, she and Petitioner Beard sail their boats and "come . . . into Mahogany Mill Pond, probably more often than anybody else." Hr'g Tr. 244. Ms. Simpson echoed the concerns of the three Petitioners who testified. She expressed her fears of a collision with the Project in the future based on difficulty in navigating the Channel prior to the Project's installation. Then there were only the two Preconstruction Mooring Pilings present 24 feet from shore as opposed to the Project that is now 24 feet offshore with a width of 36 feet: And like everybody else . . . we use Jim Veal's slip . . . we have to go in almost south of him . . . so you get the boat in. And once we pass the spit, we . . . do a sharp turn and come up . . . if there's any type of weather at all . . . you've got to keep the boat moving . . . there [have] been numerous occasions when the wind was heavy . . . that we will come so close to the pilings out there that I actually was on the bow of the boat pushing it away . . . . * * * . . . if there's a wind blowing . . . you have to be coming so fast to keep it up and then you have to make sure that you can make that run and keep it under control. And like I said, I've pushed off from [the pilings]. Hr'g Tr. 244-6. Mrs. Simpson's concerns were not limited to the Project. Boats with engines attached to their sterns docked at the Project can extend out further than the Project: "[N]ow there's been another . . . 4 feet added on to [the Project] because . . . everybody [who] builds a dock wants a boat bigger than the dock is." Hr'g Tr. 247. The three Petitioners shared the concern about the additional extension into a Channel of boats and engines beyond the 24 feet of the Project's extension. Ms. Simpson reiterated, "If there's any wind at all, [the Project and boats docked at it] are going to cause major problems." Hr'g Tr. 248. As the three Petitioners who testified, Ms. Simpson has never collided in a sailboat with the Preconstruction Mooring Pilings. At the time of hearing, Petitioner Beard had been in the Bahamas with his sailboat since October 2012 and had not returned. Ms. Simpson, therefore, had not yet contended with the Project or any boats docked there in navigating the Channel. Ms. Simpson, however, did observe Mr. Kriegel attempt to navigate his sailboat through the Channel clear of the Project. He ran aground trying to avoid both the spit and the structures. Ms. Simpson detailed potential consequences: . . . [S]ailboats running aground, it's not a good thing . . . you have got your keels and . . . instruments on the bottom close to your rudder . . . you run a sailboat aground, you take the bottom paint off and you hit whatever else is down there . . . then you have to put it in power drive to get it back off . . . you can do quite a bit of damage to a boat when you run it aground, especially a sailboat. Hr'g Tr. 259. Potential Solution Mr. Kriegel referred to a turning basin in the area of the Palm Harbor Marina. The turning basin is where Petitioners headed for the pond in their sailboats commence the swing around the spit taking into consideration the limiting point of the Veal Dock in order to avoid collisions with structures (or docked boats) that extend into the Channel. A potential solution to the difficulties encountered by navigators of sailboats in the Channel is to dredge the turning basin. If the turning basin were wide and deep enough, sailboats would have more opportunity to enter the Channel straight on rather than having to swing around the spit when entering. Some boats headed for the pond are able to make the necessary turn inside the turning basin now. Mike Lunn lives at Mahogany Mill Pond. When he looks out the sliding glass door at his house he has a clear view of the Project and the turning basin. From what he has usually seen, boats "turn around in [the] basin a little bit." Hr'g Tr. 266. He doesn't ever seem them "cut like that," id., in the swing described by Petitioners. Whether he was referring to sailboats or just powerboats is not entirely clear, but he testified with regard to Petitioners and the entry into the Channel they described, "that's what y'all are saying but that's not what I see." Id. In testimony that followed Mr. Lunn's, Mr. Kriegel explained that it is hard to judge when and where to make turns in the basin because of the narrowness of the Channel. There is no doubt, however, that navigation would be improved with dredging of the turning basin to make it deeper and wider even if it did not entirely cure the navigational problems described by all of Petitioners and Ms. Simpson. As Mr. Kriegel offered on cross-examination by Mr. Dunaway: Now, if the turning radius were expanded, if the turning basin were dredged out, if the boats had more room to maneuver, some of [the navigational problems getting to the pond from the bayou] could be improved, yes. Hr'g Tr. 166. Whether dredging the turning basin is an attainable solution was not confirmed. Mr. Kriegel testified, "I'm not sure . . . everybody would like to see it dredged out." Hr'g Tr. 167.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Environmental Protection issue a final order determining that Mahogany Mill Owners Association, Inc.'s Project qualifies for an exemption from the need to obtain an Environmental Resource Permit under section 403.813(1)(b) and qualifies for authorization to use sovereign submerged lands under rule 18-21.005(1)(b). DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of June, 2013.
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
