The Issue Is Secret Oaks Owners' Association, Inc. (the Association) entitled to the issuance of a wetland resource management permit (environmental permit) from the Department of Environmental Protection (DEP) and a consent of use of sovereign submerged lands (consent of use) from the Board of Trustees of the Internal Improvement Trust Fund (the Board) which would allow the construction of a dock?
Findings Of Fact The Parties DEP is charged with the regulation of dredge or fill activities, in, on, or over the surface waters and wetlands in the state of Florida as contemplated by Chapters 373 and 403, Florida Statutes, and rules promulgated in accordance with those statutes. In this capacity, DEP conducts regulatory review of applications for environmental permits which would allow the conduct of those activities in the regulated areas. DEP also has the responsibility as delegated staff of the Board to take final agency action on requests for proprietary authorization, in this instance, consent of use of sovereign submerged lands. Here, any proprietary authorization would be in accordance with Chapter 253, Florida Statutes, and associated rules. The review process undertaken by DEP for the environmental permit and consent of use is concurrent. See Section 373.427, Florida Statutes. The Association sought an environmental permit and consent of use in the interest of 15 lot owners in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, Florida, to construct a dock. The Association which represents the interest of the lot owners is a Florida not-for-profit corporation whose current president is William Magill. The Parlatos own and reside at Lot 10 within the Secret Oaks subdivision. They do not desire to participate with the other 15 lot owners in requesting permission form DEP to build the proposed dock. The Parlatos oppose the project and have expressed that opposition through their petition. Before the Parlatos purchased Lot 10, George W. Law, the developer of Secret Oaks subdivision, prepared, and had recorded with the Clerk of Circuit Court in St. Johns County, Florida, a Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision (the Declaration). In pertinent part that document stated: The Developer hereby grants to the present and future owners of all the lots in said subdivision . . . and to their guests and lessees and other persons authorized by any such owner, a non-exclusive, perpetual, and releasable easement on, over, along, and across those portions of Lot(s) 10 . . . of said subdivision which are subject to the 20' drainage easement as shown on said plat and running from Secret Oaks Place westwardly to the St. Johns River for the purpose of pedestrian access to and from the lots in said subdivision and said other parcel and the St. Johns River and any dock now or hereafter located thereon and for the use and enjoyment of any such dock and any other improvements now or hereafter constructed within said easement by the Developer or by the owners, as hereinafter authorized. The provisions of this paragraph shall not be deemed to be or imply any dedication of said easement or of said dock, if any, or of any other improvements to any person not designated herein or to St. Johns County or to the public. Given that the Declaration of the easement in favor of the present and future owners of the lots in the subdivision, and other related persons, was subject to the preexisting 20- foot drainage easement in behalf of St. Johns County, the easement for those lot owners and other persons was deemed non- exclusive. The drainage easement for the benefit of St. Johns County had been previously recorded by the developer as part of a plat in the public records of St. Johns County, Florida. The nature of the drainage easement held by St. Johns County at Lot 10 is for an outfall structure involving a 24-inch diameter culvert at the edge of the river designed to convey stormwater from the uplands into the river. The basis of the Association's request for an environmental permit to construct a dock and for consent of use to place that dock over sovereign submerged lands is premised upon the easement fronting the St. Johns River granted the lot owners in the Declaration and the subsequent Secret Oaks Subdivision Owners' Agreement (the Agreement). The Agreement was also recorded with the clerk of the Circuit Court in St. Johns County, Florida. The latter document reiterated the existence of the easement in favor of the lot owners and defined its terms. It, like the Declaration, was recorded before the Parlatos closed their purchase of Lot 10. The agreement at Article V., RULES CONCERNING USE OF THE DOCK stated in pertinent part: Nothing in the making of this contract shall be construed to expand the easement area described in the Declaration or to otherwise grant, or to otherwise authorize unlicensed or unauthorized trespasses upon Lot(s) 10. The easement is clarified so that it is understood that it is over, under, in and through the Dock as well as the portions of Lot(s) 10 ---------------described in the Declaration. The reference to an existing dock pertained to a dock extending from the shore, at Lot 10, at a place unassociated with the easement. However, the easement was connected to the main dock by an "L" shaped auxiliary dock beginning at the shore of the easement roughly parallel to the main dock and then at a right angle connecting to the main dock in the water. The developer, Mr. Law, had constructed the main dock and auxiliary dock before preparing and having recorded the Declaration. He never arranged for appropriate regulatory permission or consent for lot owners and other affiliated persons to use the main dock and auxiliary dock. The Parlotos were aware of the rights of other lot owners under the Declaration and Agreement before purchasing Lot 10. Before the present application was made, the preexisting "L" shaped auxiliary dock connecting the easement to the dock still in existence (the main dock) at Lot 10, had been removed by the Parlatos, depriving other lot owners of access to the main dock from the shore. Ward lives at 912 Fruit Cove Road, in Jacksonville, Florida, immediately adjacent to and south of the Parlatos' property. The Application On November 28, 1994, DEP received the Association's Joint Application for Works in the Waters of Florida. By this application the Association sought to construct a dock extending from the middle of the easement on Lot 10, commencing at the shoreline at Lot 10, extending 562 feet into the St. Johns River, a Class III waterbody. The total square footage of the proposed dock over waters of the state contemplated by the application was 3,234 square feet. The proposed dock was constituted of an access pier 5 feet by 520 feet, a terminal platform at the end of the access pier 10 feet by 16 feet, and a proposed covered boat slip 16 feet by 28 feet waterward from the terminal platform with an associated proposed catwalk 3 feet by 26 feet at the boat slip. See DEP Exhibit No. 2. Another dock extended from Lot 10 whose length was approximately 510 feet. This is the dock constructed by the developer, Mr. Law. It was located outside the easement, adjacent to the lot owned by the Parlatos. A second dock existed on the property south of the proposed dock approximately 550 feet in length. The dock to the south of Lot 10 described in the Association's 1994 application and referred to here belongs to Ward. The existing dock immediately south of the proposed dock was 90 feet away from the existing dock on Lot 10 at the closest point. The existing dock extending from Lot 10 is the dock that was "now" located described in the Declaration, Grant of Easements, Assessments for Secret Oaks Subdivision previously discussed. More recently, on March 3, 1999, pursuant to the application of the Parlato's in DEP File No. 55-136932-001-ES, DEP issued the Parlatos an environmental permit and consent to use sovereign submerged lands in relation to the existing dock extending from Lot 10. The Parlatos were granted permit number 55-136932-001-ES based upon the entry of a final order by DEP in Secret Oaks Owners' Association, Inc., Petitioner vs. Martin D. and Linda K. Parlato and State of Florida, Department of Environmental Protection, Respondents, DOAH Case No. 98-4281/OGC Case No. 98-1329. This allowed the Parlatos to reconfigure that dock when compared to its appearance from that which existed when the Association applied for its permit to construct its proposed dock. The activities allowed by the Parlato permit and consent of use are as follows: This project is to remove an existing 4 foot by 10 foot walkway platform, a 15 foot by 16 foot terminal platform, and a covered boat shelter from a private use dock in the St. Johns River, St. Johns County, and construct a 5 foot wide, 38 foot long jogged walkway addition, a 12 foot by 16.5 foot uncovered waterward "L" platform, and a covered two-slip boat shelter 40 feet in width and 45 feet in length, including 3 foot wide perimeter catwalks. This permit and consent of use did not address the right of Association members to use the existing dock. With these modifications the pre-existing dock from Lot 10 would be located closer to the Association's proposed dock. In reference to the present application, DEP staff recommended that the applicant consider potential impacts to manatees through the imposition of DEP's standard manatee construction conditions and that habitat resources such as submerged aquatic vegetation be protected from impacts. To this end the recommendation was made to construct the covered boat slip and terminal platform beyond the limits of the grass beds on the site. It was also recommended that the access pier be constructed 5 feet above mean-high-water to minimize the shading effect of the dock placement as that effect might influence the health of the grass beds. Similarly, it was recommended that adequate spacing be provided between the planks in the access pier to afford that protection. Finally, it was recommended that vessels not be allowed to tie up to the dock in the area where the submerged vegetation was located. In response to these concerns, the proposed dock would be elevated 5 feet above mean-high-water. The access pier that would be constructed over the grass bed is designed with adequate spacing to allow the maximum light penetration practicable. Signs would be placed on the access pier reminding users of the presence of submerged grass beds, and the possible presence of manatees in the vicinity of the dock. The terminal platform and covered boat slips would be located waterward of existing grass beds. See DEP Exhibit No. 5. The placement of handrails on the access pier and the terminal platform are also intended to discourage boaters from tying up in those places where the handrails are found, because it would be more difficult to exit the vessel onto the access pier or terminal platform than would be the case without handrails. In addition to signs being placed noting that the proposed access pier crosses submerged grass beds and the anticipated presence of manatees in the vicinity of the dock, a specific permit condition called for by DEP requires signage notifying users of the dock that no docking or mooring of watercraft is permitted along the access pier. The specific conditions also call for the elevation of the pier at a 5-foot distance above mean-high-water, as the dock design anticipates, and the imposition of additional measures in the handrail design to further discourage boaters from tying up and climbing over or through the handrails onto the access pier. Grass beds such as those at the site are used by manatees as habitat. Manatees have been observed in the vicinity of the area where the proposed dock would be constructed. Following the permit review, DEP determined to issue the permit as noticed on June 7, 1995. In March 1996, the Association offered an amended application with a design drawing intended to change the location of the landward extent of the access pier to avoid interfering with the St. Johns County stormwater outfall. This modification is insignificant. See DEP Exhibit No. 7. The proposed dock is comparable in its length to other docks along the shoreline of the St. Johns River, in the vicinity of the project. Should the proposed dock be constructed and used, no long-term adverse impacts to the water quality in the St. Johns River are anticipated. Short-term impacts to the water quality are expected and limited to problems with turbidity. However, the terms of the proposed permit reasonably mitigates those effects. During construction screens and curtains would be utilized to control turbidity and erosion. Some impacts on biological diversity can be expected through the shading of portions of the submerged grass beds but those impacts would be minimal given the design of the dock in accordance with DEP's specific conditions to protect the grass beds and their value as manatee habitat. The proposed project is not contrary to the public interest. The project will not have an adverse effect on the public health, safety, or welfare. Nor will the project have an adverse effect on the property of others within the context of DEP's protection of the environment consistent with the permitting process. Concerns expressed by the Parlato's about their potential liability for personal injury claims arising from the use of the proposed dock; the possible claims made against the Parlato's for dock repair and maintenance associated with the proposed dock; and the possible effects of the construction of the proposed dock on the value of their upland property are not within the ambit of DEP review when considering an application for a wetland resource management permit. No adverse effects are anticipated on navigation as that term has been defined by DEP. To that end, the proposed dock location in relation to navigation, in broad terms, does not interfere with vessels in commerce and vessels used for recreation. Moreover, the use of the proposed dock would not interfere with those opportunities. In addition to the permanent signs to be placed to inform dock users that manatees might be present, the proposed permit contemplates other protections while the dock is being constructed. Taking into account the protections incumbent upon the Association that have been prescribed by DEP in its proposed permit, there will be no adverse impact to manatees and their habitat or fish and other wildlife and their habitat. Likewise, there will be no adverse effects on fishing or recreational values or on marine productivity in the vicinity of the proposed dock. Consent of Use While the association was successful in its attempt to gain proposed permit no. 552613202 to construct the dock in question here, the Association met with resistance in its related request to gain consent of use of sovereign submerged lands. On September 21, 1995, DEP denied the Association consent of use of sovereign submerged lands for the reason that: The proposal is inconsistent with Chapter 18-21.004(3)(b), Florida Administrative Code (F.A.C.) which states: 'applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.' The reason sufficient title interest is required is to ensure that the Board of Trustees of the Internal Improvement Trust Fund will be able to lien the upland property to recover costs and fines associated with violations of the consent and/or removal of the structure. Past and current Board of Trustees' policy has been and is to consider an easement an insufficient title interest to build a structure on sovereign lands unless the owner of the upland gives written consent for such use of the property, including the state's right to lien his uplands. In this case, where the upland owner refuses, consent must be denied by the Trustees. On February 28, 1996, by way of clarification, DEP wrote the Association and stated: Riparian rights are held only by the title holder or the holder of the lease of the riparian uplands. See Section 253.141, Florida Statutes. Thus, it is the Department's position that a holder of a mere easement does not have sufficient title interest in the uplands to make application for activities on sovereignty submerged lands. The Association challenged the DEP decision to deny consent of use and requested a Section 120.57(1), Florida Statutes, hearing. In that case, the Association, DEP, the Parlato's, and St. Johns County were named parties. At the commencement of the final hearing before the undersigned, it was determined that material disputes of fact did not exist and the case was returned to DEP for conduct of a hearing consistent with Section 120.57(2), Florida Statutes. In that hearing, a decision was reached based upon the interpretation of Rule 18- 21.004(3) (b), Florida Administrative Code. In a decision by Percy W. Mallison, Jr., Hearing Officer appointed by DEP, entered on October 21, 1996, in the case of Secret Oaks Owners' Association, Petitioner v. State of Florida, Department of Environmental Protection, Respondent, and Martin and Linda Parlato, and St. Johns County, Intervenors, OGC Case No. 95-2392, Hearing Officer Mallison denied the Association's request for consent of use to use sovereign submerged lands because the Association did not qualify under the terms of Rule 18-21.004(3)(b), Florida Administrative Code, to be granted consent. The Association appealed the denial of its Request for Consent of Use of Sovereign Submerged Land and on motion for rehearing in Secret Oaks Owners' Ass'n, Inc. vs. Department of Environmental Protection, 704 So. 2d 702 (Fla. 5th DCA 1998), the court concluded that DEP's interpretation of Rule 18-21.004(3)(b), Florida Administrative Code, as excluding the Association from applying for consent of use was clearly erroneous and reversed and remanded the case for consideration leading to the present proceedings. Following the remand, after reviewing the Association's Request for Consent of Use, on September 10, 1998, DEP gave notice that it intended to grant consent. In that notification it referred to the application calling for construction of a community dock with one covered boat slip. As a consequence, in the preliminary determination DEP concluded that the facility had less than three or more wet slips and was not subject to the provisions in Rule 18-21.004(4), Florida Administrative Code, pertaining to ownership-oriented docking facilities. Additionally, the Statement of Intent to Grant Consent of Use referred to the expectations in Chapter 18-21, Florida Administrative Code, wherein the applicant could extend the dock to exceed the ratio of submerged land to shoreline in order for the applicant to access reasonable water depths. Given the water depths in the vicinity of the proposed dock, its length and size comports with the minimum necessary to provide reasonable access to navigable water, while allowing for construction of a covered boat slip. Notwithstanding the fact that the proposed dock could be used by multiple families involved with the Association, DEP perceived the Association as requesting consent of use pertaining to a single-family-type dock. The guests and invitees of those families would also have access to the dock. DEP considered the application as a request of consent of use as a residential dock based upon the design for one boat slip to moor one boat. Although all Association members can potentially use the dock, at present there has been discussion of precluding persons within the Association who have no interest in using the dock. The Parlatos are not members of the Association based upon their request to be excluded from membership. The Association has yet to establish rules pertaining to the use of the proposed dock. Although rules pertaining to the use of the proposed dock have not been determined, the Association anticipates developing rules for the use of the proposed dock that are similar to those that have been established in the Agreement. Thus far, those rules in the Agreement have been related to the hypothetical use of the existing dock extending from Lot 10. Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code, contemplate that the Board and through its delegation of authority, DEP, are expected to fulfill the trust and fiduciary responsibilities in managing the use of sovereign submerged lands for the public benefit. More specifically, the Board has the authority pursuant to Section 253.04, Florida Statutes, to impose administrative fines in relation to improper acts associated with the use of sovereign submerged lands. To the extent that the Board needed to pursue the remedy of imposition of an administrative fine against the Association for an impropriety, the Association has limited assets. Its assets are constituted of $400.00 in dues per year ordinarily assessed against the Association members for legal expenses and maintenance of common areas in the subdivision. The Board may also bring suits in pursuing its responsibilities as trustee of sovereign lands. This opportunity is associated with Section 253.04, Florida Statutes. Association's Prior Applications On September 18, 1992, the then Department of Environmental Regulation, now the Department of Environmental Protection, received the Association's Joint Application for Works in the Waters of Florida. Parlato Exhibit No. 8 admitted into evidence is constituted of the joint application and contains information concerning the design of two alternatives. The first alternative was for the replacement of the L-shaped auxiliary dock that had been removed by the Parlatos. With the reconstruction of the auxiliary dock contemplated by the application submitted by the Association, members of the Association could use their easement to access the auxiliary dock and pre-existing main dock. The alternative proposed in the application made by the Association was to construct a dock extending directly from the easement unconnected to the preexisting dock. The application for both alternatives was denied. The Association challenged the denial. In a contested hearing pursuant to Section 120.57(1) Florida Statutes, the Association did not prevail. The outcome of that litigation is found in Secret Oaks Owners' Association, Inc., v. State of Florida, Department of Environmental Protection and Martin and Linda Parlato, 15 F.A.L.R. 3786 (Dept of Env. Protection 1993). The final order in the above-referenced case adopted the recommended order entered by Ella Jane P. Davis, then hearing officer of the Division of Administrative Hearings. The Parlatos, through their petition in opposition to the grant of an environmental permit in the present case, claim that the Association should be denied that permit based upon the doctrine of res judicata or collateral estoppel. To this end, the Parlatos assert that the determination in the prior case in which the Association was denied an environmental permit should promote the denial of the present application for an environmental permit. In comparing the facts found in the present case with the findings of fact in Secret Oaks 15 F.A.L.R. 3786, then hearing officer Davis found as fact: Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the state agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes, and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20-foot by 10-foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. * * * 11. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. * * * 13. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. * * * 15. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grass beds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with the construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the manatees' feeding ground. * * * Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use. The permit application seeks a multi- family permit for either alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward 50 feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long-term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all 16 lots, their families, and social invitees. Although there are currently only three or four houses on the 16 lots, there is the potential for 16 families and their guests to simultaneously use any multi-family dock. Although all 16 lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. * * * 25. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grass beds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and re-suspension of bottom sediments onto adjacent grasses. * * *
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. As contemplated by the final order wherein it was determined that the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786 would not prejudice the opportunity for the Association to make future applications, another application was made for the construction of a dock. That application was made on September 28, 1993, to DEP for a wetland resource management permit allowing construction of a 4-foot wide, 70-foot long, "L"-shaped access walkway, from the easement to the pre-existing dock. The application contemplated the reclassification of the pre-existing single-family dock to a multi-family dock with 6 mooring pilings to be installed at the waterward end of the pre- existing dock creating 6 additional 15-foot wide by 20-foot long boat slips. This application was in accordance with DER File No. 55-238536-2, St. Johns County. With the addition of the 6 boat slips there would be 7 permanent boat moorings at the pre- existing dock. The applicant intended to install handrails on the portions of the dock that crossed the grass beds to preclude boating activities in those areas. A lock-gate was to be installed to restrict access and two signs were to be posted advising dock users not to impact the grass beds. In denying the application in DER File No. 55-238536- 2, DEP pointed to the risk of manatees that would be promoted by the addition of 6 additional slips to the existing dock. DEP indicated that the potential adverse impacts to manatees and their habitat could be overcome through the entry of a long-term agreement with DEP insuring that the facility contemplated for construction is operated in a manner so as to protect manatees in their habitat. The Notice of Intent to Deny became the final disposition in that permit application absent the Association's challenge to the preliminary decision by DEP. Concerning the Parlatos' assertions of res judicata and collateral estoppel there are significant differences in the outcome in Secret Oaks Owners' Association at 15 F.A.L.R. 3786, compared to the present case on the facts. The proposal in the present case reduces the size and length of the proposed dock, raises the height of the proposed dock above mean high water, places handrails on the proposed dock, and most significantly, reduces the potential mooring areas to one covered boat slip.
The Issue The issue is whether ten applications filed by Petitioner, Normandy Shores, LLC, for an exemption from Environmental Resource Permit (ERP) requirements to construct and install ten docks to serve eighteen private boat slips and a letter of consent to use sovereign submerged lands in Indian Creek, within the Biscayne Bay Aquatic Preserve (Preserve), Miami Beach, Florida, should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background The Department is the agency responsible for administering the provisions of Part IV, Chapter 373, Florida Statutes,2 regarding activities in surface waters of the State that may or may not require an ERP. Florida Administrative Code Rule 40E-4.051(3) authorizes the Department to approve exemptions from ERP requirements for the construction of certain docking facilities and boat ramps. In addition, the Department has authority from the Board of Trustees of the Internal Improvement Trust Fund to review and take final agency action on Petitioner's requests for proprietary authorizations. Petitioner is a developer of residential and commercial properties. It owns waterfront land on the eastern side of Normandy Isle at 25-135 North Shore Drive, Miami Beach, Florida. Normandy Isle is surrounded by water, lies just west of Miami Beach, and is accessed by the John F. Kennedy Causeway (also known as 71st Street or State Road 934), which runs between the Cities of Miami and Miami Beach. Normandy Waterway runs in an east-west direction through the center of Normandy Isle, while Indian Creek appears to generally run in a northwest-southeast direction between Normandy Isle and Miami Beach. (Petitioner's property is on the northern half of the island.) Both of these waterbodies are in the northern portion of the Preserve, a Class III and Outstanding Florida Water. The Preserve is a body of water that stretches the length of Miami-Dade County, essentially from Broward County to Monroe County. The property adjoins Indian Creek to the east (the long side of the parcel) and Normandy Waterway to the south (the short side of the parcel) and is situated at the intersection of those two waterways. Petitioner is currently developing the property as Privata Townhomes (Privata), a luxury townhome community. Petitioner holds title to the property and a portion of submerged lands of Indian Creek and Normandy Waterway. The boundaries of the privately-owned submerged lands are accurately depicted in Petitioner's Exhibit 12. The Privata development comprises a total of forty- three, single-family townhomes in seven buildings. Eighteen townhomes are being constructed as waterfront homes along Indian Creek (buildings 1, 2, and 3). Seven are being constructed as waterfront homes along Normandy Waterway (building 4), while the remaining eighteen townhomes (buildings 5, 6, and 7) are not situated on waterfront property. Each waterfront parcel is approximately eighteen linear feet wide and consists of both upland and private submerged lands. The private submerged lands facing Indian Creek run the entire length of the property and extend approximately ten feet from the shoreline. On October 1, 2007, Petitioner filed with the Department ten applications for an exemption and letter of consent to construct ten docks (docks 1 through 10) and eighteen boat slips. The proposed docks will be located on the shoreline extending into Indian Creek and the Preserve. Docks 1, 2, 4, 5, 6, 8, 9, and 10 will serve two slips each, or a total of sixteen slips, while docks 3 and 7 will project outward from one single- family parcel each and will be wholly-owned by that respective single-family parcel owner. All of the docks will be spaced less than sixty-five feet from one another. According to Petitioner, the Department has already given Petitioner authorization to construct three docks for the units in Building 4 facing Normandy Waterway to the south, and they are not in issue here. The basis for that authorization, and the distinction between those docks and the ones in dispute here, are not of record. Each of the docks will be built using four pilings with forty square feet of decking. Therefore, each dock will be less than five hundred square feet of surface area over the surface waters. Associated with the docks are eighteen boat slips that will include an additional pile installed approximately thirty feet from the shoreline. The slips and docks are exclusively for the private use of, and will be owned by, the waterfront townhome owners. The eighteen non-water townhome parcel owners will not have any rights to submerged lands owned in fee simple by the purchasers of the waterfront townhomes or the right to use any slip or dock. This is confirmed by Article II, Section 1 of the Declaration of Covenants, Restrictions and Easements for Privata Town Homes at Miami Beach (Declaration of Covenants). There have been docks and vessel moorings at the project site for at least forty years. However, the docks do not qualify for automatic grandfathering because a grandfather structure application was never submitted to the Department, as required by Florida Administrative Code Rule 18-21.0081. After reviewing the applications, the Department issued its Notice of Intent on December 13, 2007, as later amended on September 13, 2008, denying all ten applications. Citing Florida Administrative Code Rule 40E-4.051(3)(b), the Department asserted that "the proposed docks are part of a multi-family living complex and therefore must be a minimum of 65-ft. apart in order to qualify for the exemption." As to the letter of consent, the Department asserted that based upon the upland development at the site, the proposed docks constituted a private residential multi-family dock or pier, as defined by Florida Administrative Code Rule 18-21.003(44). In addition, the Notice of Intent stated that the proposed docks fell within the definition of a "commercial/industrial dock," as defined in Florida Administrative Code Rule 18-18.004(7), and therefore they required a lease (rather than a letter of consent) in accordance with Florida Administrative Code Rule 18- 18.006(3)(c). Thus, the Department takes the position that an ERP and a lease are required before the docks may be constructed. The parties have raised no issues regarding riparian rights. By an amendment to its Notice of Intent issued on September 13, 2008, the Department added as a reason for denying the letter of consent that the docks will cause unacceptable cumulative impacts on the Preserve within the meaning of Florida Administrative Code Rule 18-18.008. The Development Each townhome occupies three stories of vertical, independent space. No unit is situated over any other unit. Each townhome has a separate entrance through its own front door, and each has its own garage. The townhomes in each building share a single wall. Petitioner stated that this was done because if the units were constructed with a narrow space between them, it would create safety, fire, water moisture, and mold issues. However, there is no cross-access between the units, and there is no penetration (such as common plumbing, fire sprinklers, or electrical conduits) through the load-bearing walls. Even so, the units have various common structural elements such as bearings, bearing walls, columns or walls necessary to support the roof structure, and siding, finish, trim, exterior sheatings (coverings), and other exterior materials. There is a common area that runs the entire length of shoreline between the buildings and the water. Within the common area there is a seawall, sidewalk, pool, and grassy area that are accessible by any member of the Privata Homeowners' Association (Association). According to the Declaration of Covenants, the Association is responsible for painting the exteriors of the buildings, including the walls, doors, and windows; maintaining and repairing the docks and seawalls; and maintaining the common areas. Members who own docks will pay a higher fee to the Association than non-waterfront owners to offset the additional costs associated with maintaining and repairing the docks. Eighteen of the waterfront townhome parcels are currently under purchase and sale agreements. The boat slips were one of the main selling features of the waterfront townhomes. In fact, the sales are contingent on the docks being constructed, and Petitioner concedes that if the docks are not built, the buyers will not be required to close on their contracts. In its Privata marketing brochures, Petitioner refers to "private boat docks" and owners having "a private boat slip right in their own backyard" that is "[a]ble to accommodate vessels up to 40 feet." It is fair to infer from the evidence that the docks were used as a major inducement for customers to purchase the waterfront parcels. Exemption from an ERP Florida Administrative Code Rule 40E-4.051(3)(b)4. provides in relevant part that no permit shall be required for (b) The construction of private docks of . . . 500 square feet or less of surface area over wetlands or other surface waters for docks which are located in Outstanding Florida Waters. . . . To qualify for this exemption, any such structure: * * * 4. Shall be the sole dock constructed pursuant to this exemption as measured along the shoreline for a minimum distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in length along the shoreline, in which case there may be one exempt dock per parcel or lot. For the purposes of this paragraph, multi-family living complexes and other types of complexes or facilities associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property. . . . (Emphasis added) Under the rule, an applicant will not qualify for an exemption from permitting requirements if the upland structure of a project site is a multi-family complex or facility. In those cases, the owner of the project site is allowed to construct one dock per sixty-five feet of shoreline (assuming the size of the dock comports with the rule). The rule specifically provides that the legal division of ownership or control of the property is not relevant in making this determination. The underscored language in the rule is at the heart of this dispute. The parties sharply disagree over whether the Privata development consists of single-family units or whether it is a multi-family living complex. Although the term "multi- family living complexes and other types of complexes or facilities" is not further defined by the rule, the Department has consistently (with one exception cited below) interpreted this provision to include buildings with so-called "attached townhomes." Because the Privata townhomes share a wall with a neighbor, as well as other common facilities, the Department considers each building on the uplands to "house multiple families." Put another way, multiple families will live in each structure (building). On the other hand, if the units were detached and free-standing, even by a few inches, the Department agrees they would probably fall within the category of "individual, detached, single-family homes." The greater weight of evidence supports a finding that the upland project is a multi-family living complex. This is because the project has the attributes of a multi-family complex, such as units sharing a common wall, multiple families living in each building, and common areas accessible for each member of the project. While Petitioner points out that each townhome owner has fee simple title to his or her upland parcel and the ten feet of adjoining submerged lands, the rule specifically provides that the division of ownership and control of the property is immaterial to the ultimate determination of whether the property qualifies for an exemption. Given these considerations, it is found that the project does not meet the requirements for an exemption from ERP requirements under Florida Administrative Code Rule 40E-4.051(3)(b)4.3 Letter of Consent A letter of consent is a form of authorization, but does not by itself determine whether a project is approvable or not.4 In order to qualify for a letter of consent, the docks would first have to be exempt from ERP requirements. As noted in finding of fact 20, they are not. The "18 series rules [in the Florida Administrative Code] are proprietary, essentially, real estate rules" that apply to the use of state owned, submerged lands. (Transcript, page 370). General guidance or "overarching" submerged lands rules are found in Florida Administrative Code Rule Chapter 18-21, while rules specific to the Preserve are found in Florida Administrative Code Rule Chapter 18-18. Both sets of rules apply here. The dispute over the letter of consent centers on whether the dock is a "private dock" or a "commercial/industrial dock," as those terms are defined by the rules. The former does not require a lease, while the latter does. See Fla. Admin. Code R. 18-18.006 (3)(c)("A commercial/industrial dock on sovereignty lands shall require a lease. Private docks to be constructed and operated on sovereignty lands shall not require a lease of those lands.") A private dock is defined in Florida Administrative Code Rule 18-18.004(18) as a dock located on or over submerged lands, which is used for private leisure purposes for a single family dwelling unit and does not produce income. On the other hand, a commercial/industrial dock is defined in subsection (7) of the same rule as a dock which is located on or over submerged lands and which is used to produce income, or which serves as an inducement to renting, purchasing, or using accompanying facilities including without limitation multi-family residential facilities. This term shall be construed to include any dock not a private dock. Therefore, a dock may constitute a commercial/ industrial dock if it is associated with a multi-family facility; if it is used as an inducement to rent, purchase, or use accompanying facilities; or if the dock does not constitute a private dock, which is used for a single-family upland facility. The more persuasive evidence here shows that the docks are associated with a multi-family facility; they are used as an inducement to purchase the units; and they are not used for a single-family upland facility. For any one of these reasons, then, the docks must be categorized as commercial/ industrial docks. Although the term "multi-family residential facilities" is not specifically defined in Chapter 18-18, another proprietary rule provides clarification of that term. See Fla. Admin. Code R. 18-21.003(44). That rule defines the term "private residential multi-family dock or pier" as a dock or pier on a common riparian parcel or area that is intended to be used for private recreational or leisure purposes by persons or groups of persons with real property interest in a multi-family residential dwelling such as a duplex, a condominium, or attached single-family residences or a residential development such as a residential or mobile home subdivision. (emphasis added) As noted earlier, both Chapters 18-18 and 18-21 should be read in conjunction with each other. When doing so, it is found that the proposed docks are associated with "attached single-family residences" (by virtue of sharing a common wall) and fall within the definition of a commercial/industrial dock. Therefore, they do not qualify for a letter of consent. Cumulative Impacts The waterbody in issue here is an Aquatic Preserve, that is, "an exceptional area of submerged lands and its associated waters set aside for being maintained essentially in its natural or existing condition." § 258.37(1), Fla. Stat. The Legislature intended for the submerged lands and associated waters to be maintained "in an essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations." § 258.397(1), Fla. Stat. See also Fla. Admin. Code R. 18-18.001(1). "Essentially natural condition" is defined as "those conditions 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. 18-18.004(10). In determining whether a letter of consent for new docks and piers in the Preserve should be approved, Florida Administrative Code Rule 18-18.008 requires that the Department consider the cumulative impacts of those projects. The burden rests on the applicant to provide reasonable assurances that the project will not cause adverse cumulative impacts upon the natural systems. In meeting this stringent test, the rule recognizes that "while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve." The rule goes on to identify five factors that the Department must consider as a part of its cumulative impact evaluation. In this case, the Department considered "the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve"; the "similar activities within the preserve which are currently under consideration by the Department"; and the "[d]irect and indirect effects upon the preserve which may reasonably be expected to result from the activity." See Fla. Admin. Code R. 18-18.008(1), (2), and (3). The fact that the Department discussed only the first three considerations, rather than all five, in its Amended Notice of Intent does not render its evaluation improper or incomplete, as suggested by Petitioner.5 If authorized, the project will allow eighteen boats to dock at Privata along Indian Creek. Although the marketing brochures indicate that boats up to forty feet in length will use the slips, the evidence at hearing indicates that they will be no more than twenty-five feet in length. The project adheres to best management practices. Also, the number of docks was limited by means of dock-sharing for eight of the ten docks. The docks are designed so that boats will be moored parallel to the shoreline rather than horizontal to the seawall; the docks will be over six feet above mean high water; and the docks will be constructed from materials designed to minimize environmental impacts. As noted above, the Preserve extends from Broward County to Monroe County. Within the Preserve, there are literally thousands of docks, including single docks, multifamily docks, and commercial and industrial marinas. Closer to the Privata project, there are docks, boat lifts, cranes, davits (small cranes used for boats, anchors, or cargo), and marinas located on both sides of Indian Creek. The development along Indian Creek and Normandy Waterway includes commercial, multifamily, and single-family docks. Due to heavy boat traffic and extensive development around Indian Creek, it is fair to say that the project is in a high turbidity area. Besides the applications here, there are "several" other applications now pending before the Department for docks, piers, and slips within the Preserve. Two in-water environmental resource surveys by the Department revealed that resources such as paddle grass, Johnson's grass (a threatened species), shoal grass, turtle grass, manatee grass, soft coral, sponge, oysters, and sea urchins are present in the immediate area. However, it is fair to infer that these marine resources have adapted to the existing conditions and are able to withstand the stress created by the heavy usage. The evidence is sharply in dispute over whether the project is reasonably expected to have direct or indirect adverse impacts on the natural systems of the Preserve. Petitioner contends that because a small number of docks and slips are being proposed, best management practices will be used in constructing the docks and slips, the area around Indian Creek is already heavily developed, and the natural resources in Indian Creek appear to have adapted to the stress created by the other activities, the effect on the Preserve's natural systems will be de minimus. There are literally thousands of similar activities and human actions that have already affected the Preserve and are reasonably expected to continue in the future. Other applications to engage in similar activities are now pending, and it is reasonable to assume that others will be filed. The natural resources in the immediate area are diverse, as described by the Department witnesses, including at least one threatened species. There will be direct and indirect impacts that are reasonably expected to occur from the docks and mooring areas such as increased shading and decreased water quality. When the impacts of the Privata project are viewed in isolation, they can be considered "a minor change." However, the cumulative effect of this and other changes can result in adverse impacts to the natural systems. Fla. Admin. Code R. 18- 18.008. The more credible evidence supports a finding that the proposed activities will cause direct and indirect adverse impacts on the Preserve's natural systems, so that the submerged lands and associated waters will not be maintained "essentially in [their] natural or existing condition." Fla. Admin. Code R. 18-18.001(1). Therefore, in this respect, the requirement of the rule has not been met. Other Projects in the Preserve Petitioner points out that in June 2001, as later modified in April 2002, another project in the Preserve known as Aqua at Allison Island was given an exemption to construct fifteen single-family docks, nine of which were intended for private use and six to serve as shared structures for adjacent property owners. See Petitioner's Exhibits 28 and 29. The project site lies just south of Normandy Isle on Allison Island, which adjoins Indian Creek and involved a similar upland development of attached townhomes. While the Department concedes that this action occurred, no other project of this nature has ever been granted an exemption or letter of consent to construct docks and use state-owned submerged lands within the Preserve. The Department further explained that it "made an error" when it granted an exemption for the project at Aqua at Allison Island, and that with this single exception, it has consistently denied all similar applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's ten applications for an exemption from ERP requirements and a letter of consent to use sovereign submerged lands to construct ten docks and associated slips on Indian Creek in Miami Beach, Florida. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. S DONALD 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 2nd day of March, 2009.
The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
Findings Of Fact Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid- point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Patco's application for permit on the following conditions: That no submerged or transitional vegetation be destroyed in constructing the dock. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed. That no dredging by any method be used to gain access to the dock. That the owner of the dock allow no docking except in slips seaward of the main part of the dock. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock. DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance. Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock. Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits. COPIES FURNISHED: Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506 Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Peter W. Mansfield 1861 Meadow Court West Palm Beach, Florida 33406
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
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 the Appellant, Devoe L. Moore, has demonstrated, by a preponderance of the evidence, that development rights in certain real property he owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan?
Findings Of Fact The Property at Issue. On September 18, 1987, Devoe Moore acquired a tract of approximately 28 acres of real estate (hereinafter referred to as the "Property"), located on Lake Bradford Road just south of Gaines Street, in the City of Tallahassee, Leon County, Florida. The Property was the former location of the Elberta Crate and Box Company. The Property was at the time of purchase, and still is, zoned M-2, Industrial. Development of the Property. Mr. Moore intended to develop the Property consistent with the Property's M-2, Industrial zoning. Mr. Moore intended to build a service/commercial/mini-storage development similar to another such development of Mr. Moore in the City. In December, 1987, Mr. Moore had his engineer prepare grading and drainage plans for the Property. On January 29, 1988, Mr. Moore had an application for an amendment to a stormwater permit, Environmental Management Permit 87-1087, filed with the Leon County Department of Public Works. At that time, Leon County issued such permits for property in unincorporated areas and inside the City's limits. The grading and drainage plans for the Property were filed with the application. Leon County had not been delegated any responsibility or authority to make land-use decisions for the City. The requested amendment to Permit 87-1087 was based on an assumption of Mr. Moore that the Property would consist of 80% coverage with impervious surface. Therefore, the City was aware or should have been aware that Mr. Moore intended to construct a major development on the Property. Such a development was consistent with the zoning on the Property at the time. Neither Leon County nor the City, however, approved or in anyway addressed the issue of whether 80% coverage of the Property with impervious surface was acceptable. Nor did the City or Leon County make any representation to Mr. Moore different from that made by the City's zoning of the Property. Mr. Moore filed a site plan showing a development of 80% coverage with the application for amendment to Permit 87-1087. These plans showed a development consisting of thirteen rectangular buildings, driveways and parking area. The indicated development, however, was not reviewed or in anyway approved by Leon County or the City. On May 6, 1988, a Stormwater Permit, amending Permit 87-1087, was issued to Mr. Moore. This permit only approved the construction of a holding pond and filling on the Property. The issuance of the permit did not constitute approval of any proposed development of the Property. In 1988, Mr. Moore began clearing the Property of buildings on the Property which the City had condemned. Mr. Moore also began filling and grading the Property in 1988, and has continued to do so to varying degrees through July 16, 1991. From January 1989, through August, 1990, SANDCO placed 1,174 loads of fill on the Property. Jimmy Crowder Construction Company has also performed filling and grading work on the Property since 1988. As of the date the City's vesting ordnance was adopted and as of the date of the hearing before the Division of Administrative Hearings Mr. Moore has not completed filling on the Property. Mr. Moore also has not completed filtration improvements to the storm water hold pond to be constructed on the Property. Additional water treatment facilities on the Property must be constructed to handle runoff from the Property. No roadways, water services, sewer services or electric services have been constructed on the Property. Site preparation on the Property has not been completed so that construction of vertical improvements can begin. At the time that Mr. Moore acquired the Property, only building permits were required for the development of the Property. The evidence failed to prove that Mr. Moore obtained the required building permits. The law was changed, however, to require approval of a site plan. Mr. Moore decided not to submit a site plan at least in part because of the City's work on the sewer main. The weight of the evidence, however, failed to prove that Mr. Moore was prohibited by the City from obtaining site plan approval. The City has not approved or reviewed a site plan for the Property. At the time Mr. Moore purchased the Property, and continuing to the present, a City sewer main which runs along the southern border of the Property has been a problem. The sewer main is a health hazard because it is located in proximity to the surface of the ground and it has numerous leaks. The City indicated that it intended to build a new sewer main across the Property and Mr. Moore agreed to give the City an easement for the sewer main. After Mr. Moore purchased the Property and before February, 1989, Mr. Moore made a number of requests to the City that the City identify the easement it desired and prepare the easement grant so that the City could construct the new sewer main and Mr. Moore could proceed with his development. Requests were also made by some City employees of the City Attorney that the easement be prepared and executed because of the problem with the existing sewer main. In April, 1989, the easement grant was prepared and executed. On August 3, 1990, James S. Caldwell, Assistant Director of the City Water and Sewer Department, wrote the following letter to Mr. Moore: It has been brought to my attention that your are proceeding with construction of a stormwater holding pond on the referenced site [the Elberta Crate Site]. As discussed with you this date and as you are aware, the City has a sewer line on this property. The sewer line would be damaged by your construction activity. The City has designed a relocation and upgrade of the sewer line to be constructed on an easement previously acquired from you. Our schedule for the sewer line construction is completion by January 1, 1991. A review of your stormwater holding pond drawings and the proposed sewer line reveals a potential conflict between the proposed line and the holding pond. We shall have City staff stake out and flag the existing sewer line and the proposed sewer line. We are requesting that your construction activity stay away from the existing sewer line. After stakeout of the proposed sewer line, you may check your stormwater pond plans to assure that there is no conflict. [Emphasis added]. Mr. Moore was also told on other occasions to avoid interfering with the existing sewer line and the construction of the new sewer line. Construction of the new sewer main on the Property was not commenced until January, 1991. The construction had not been completed as of March, 1991. Part of the delay in completing the sewer main was caused by contemplated changes in the location of the sewer main and the possible need for a different easement. The weight of the evidence failed to prove that Mr. Moore was told to cease all activity on the Property. Costs Incurred by Mr. Moore. Mr. Moore paid approximately $1,000,000.00 for the Property. The weight of the evidence failed to prove that this cost was incurred in reliance upon any representation from the City as to the use the Property could be put other than the existing zoning of the Property. Mr. Moore spent approximately $247,541.22, for demolition of existing buildings, site clearing and grading, engineering costs, fill, permitting fees and partial construction of the stormwater management system for the Property. Mr. Moore also donated an easement to the City with a value of approximately $26,000.00. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the existing zoning of the Property and the stormwater management permit. Mr. Moore also incurred approximately $100,000.00 in expenditures similar to those addressed in the previous finding of fact for which Mr. Moore was unable to find documentation. The weight of the evidence failed to prove that these expenditures were made in reliance upon any representation by the City as to the use to which the Property could be put other than the zoning of the Property and the stormwater management permit. Development of the Property Under the 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property appears to meet the concurrency requirements of the Tallahassee-Leon County 2010 Comprehensive Plan. Mr. Moore's proposed development of the Property, however, appears to be inconsistent with the 2010 Plan because the Future Land Use Element district in which the Property is located does not permit industrial uses and the intended industrial use of the Property is incompatible with some of the uses to which adjacent property has been put. Procedure. Mr. Moore filed an Application for Vested Rights Determination prior to the filing of the application at issue in this proceeding. That application was denied by the City on October 16, 1991. In the first application Mr. Moore indicated that the Property was to be used for student housing. On or about November 13, 1991, Mr. Moore filed an Application for Vested Rights Determination (hereinafter referred to as the "Application") (Application VR0295T), with the City. "Devoe L. Moore" was listed as the owner/agent of the Property in the Application. It is indicated that the project at issue in the Application is "[i]ndustrial development of former Elberta Crate and Box Company site by Devoe L. Moore." "Progress . . . Toward Completion" is described as (1) Owner/contractor estimate; (2) Environmental Management Permit; (3) Site preparation from December, 1987, to the date the Application was filed; and (4) Construction of the stormwater system in 1990. In a letter dated February 6, 1991, Mr. Moore was informed that his Application was being denied. By letter dated February 18, 1991, Mr. Moore requested a hearing before a Staff Committee for review of the denial of his Application. On March 11, 1991, a hearing was held to consider the Application before the Staff Committee. The Staff Committee was comprised of Jim English, City Attorney, Mark Gumula, Director of the Tallahassee-Leon County Planning Department and Buddy Holshouser, Director for the City's Growth Management Department. At the conclusion of this hearing the Staff Committee voted 2 to 1 to deny the Application. By letter dated March 19, 1991, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department, informed Mr. Moore that the Application had been denied. By letter dated April 4, 1991, to Mr. Gumula, Mr. Moore appealed the decision to deny the Application. By letter dated July 3, 1991, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on August 27, 1991. F. Other Projects Approved by the City. Mr. Moore submitted, without objection from the City, other vesting rights applications and final orders concerning such applications which were ultimately approved by the City. All of those cases are distinguishable from this matter. See the City's proposed finding of fact 30.
The Issue The issue in these consolidated proceedings is whether the proposed single-family residential dock meets the requirements for a letter of consent for use of sovereignty submerged lands pursuant to chapters 253 and 258, Florida Statutes, and Florida Administrative Code Chapters 18-20 and 18-21, such that the Consolidated Regulatory Exemption and Letter of Consent for Department of Environmental Protection File No. 0319584-003EE, as amended on September 30, 2020, should be granted.
Findings Of Fact The Parties DEP is the state agency charged with regulating specified activities in state jurisdictional surface waters, pursuant to chapter 373, part IV, Florida Statutes. Additionally, DEP is charged with performing all staff duties and functions for the Board of Trustees of the Internal Improvement Trust Fund ("Trustees" or "Board") related to the administration of state-owned lands pursuant to chapter 253, including sovereignty submerged lands in aquatic preserves, pursuant to chapter 258. In this case, DEP is responsible for reviewing the application for the dock and issuing the Dock Approval that has been challenged in these proceedings. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be, at 1953 Long Beach Drive, Big Pine Key, Florida. She is the applicant for the Dock Approval that has been challenged in these proceedings. The Trust owns the upland property located at 1975 Long Beach Drive, Big Pine Key, Florida. This property is located immediately adjacent to, and west of, Fondriest's property. DeMaria and Appel own the upland property located at 1997 Long Beach Drive, Big Pine Key. This property is located two parcels west of Fondriest's property. Appel owns two other upland properties located on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. Crilly is the holder of a marine turtle permit issued by the Florida Fish and Wildlife Conservation Commission ("FFWCC"), and she volunteers as a sea turtle monitor for the Long Beach Drive area of Big Pine Key. History of the Dock Approval and Notice of Agency Action As stated above, on December 10, 2019, DEP issued a regulatory general permit and letter of consent to Fondriest, approving the 2019 Approval, which was then proposed as an 800-square-foot structure for use as a pier for non-motorized vessels. There was no evidence presented that Petitioners received a clear point of entry to challenge DEP's proposed agency action issued on December 10, 2019, either through receipt of written notice by mail, or constructively through publication of notice of the proposed agency action in a newspaper or other publication medium. The Trust filed a Petition for Administrative Hearing on January 30, 2020; DeMaria filed a Verified Petition for Formal Administrative Hearing on January 31, 2020; and Crilly filed a Verified Petition for Formal Administrative Hearing on February 27, 2020. On September 11, 2020, Fondriest filed a revised application with DEP, reducing the size of the Dock to 500 square feet; requesting a verification of exemption from permitting, pursuant to rule 62-330.015(5)(b) and section 403.813(1)(b)2; and requesting authorization, pursuant to chapters 253 and 258, and chapters 18-20 and 18-21, to use sovereignty submerged lands. On September 30, 2020, DEP issued Florida Department of Environmental Protection’s Notice of Proposed Changes to Agency Action—i.e., the "Dock Approval"— 2 Because the Dock will have less than 500 square feet of over-water surface area, it is exempt, pursuant to section 403.813(1)(b). from permitting under chapters 373 or 403. Petitioners have stipulated that the Dock qualifies for the permitting exemption under section 403.813(1)(b). verifying the regulatory exemption and authorizing the use of the sovereignty submerged lands by a letter of consent.3 DEP's agency action proposing to approve the Dock supersedes all prior DEP agency action with respect to the Dock, and constitutes the proposed agency action at issue in these proceedings. Long Beach Drive and the Surrounding Area Fondriest's property is located on Long Beach Drive, Big Pine Key, in Monroe County. Long Beach Drive is located on a spit of land comprising the southern and westernmost part of Big Pine Key. The south side of Long Beach Drive, where Fondriest's, the Trust's, and DeMaria's and Appel's properties are located, borders the Straits of Florida.4 Thus, Fondriest's, the Trust's, and DeMaria's and Appel's properties are riparian to sovereignty submerged lands underlying the Straits of Florida. The land along Long Beach Drive is platted and has been developed for residential and commercial uses. The Long Beach Drive area of Big Pine Key is located within the Coupon Bight Aquatic Preserve ("CBAP"), an Outstanding Florida Water and aquatic preserve consisting of approximately 6,000 acres of bays, mangrove forests, seagrass beds, and offshore patch coral reefs. The Long Beach Drive area, including Fondriest's property, is characterized by a rocky shore, with some narrow sandy beaches. The shore accumulates a significant amount of weed wrack consisting of seaweed, seagrass, and other debris. A beach berm created by wave and tide action 3 The Dock Approval states that the Dock does not qualify for the federal State Programmatic General Permit for section 404 of the Clean Water Act and section 10 of the Rivers and Harbors Act. Separate federal approval for the Dock has been issued by the Army Corps of Engineers, and Monroe County has issued a Building–Floodplain–Development Permit for the Dock. 4 All references to the shore or shoreline along Long Beach Drive refer to the shore or shoreline abutting the Straits of Florida. exists along much of the shore. The berm is frequently overtopped by water during high tides and storms. The beach is disturbed due to frequent use by residents and sea turtle monitors. Among the activities that take place on the beach are kayak launching, beach walking, beach cleaning and restoration, vegetation planting, and sea turtle nest monitoring. Several docks already exist along the shore on Long Beach Drive. The longshore current along the shore at Long Beach Drive flows, and transports sand from, east to west. The existing mangroves, jetties, and points along the Long Beach Drive shoreline trap sand and cause accretion of updrift beaches and starvation of downdrift beaches. The competent, credible evidence establishes that the docks along the shoreline on Long Beach Drive do not significantly contribute to beach accretion, starvation, or erosion in the area. The Proposed Dock The Dock is a private residential single-family dock associated with Fondriest's single-family residence at 1953 Long Beach Drive. It will not be used for commercial purposes or residential habitation, and there are no boat houses, boat lifts, or other enclosures proposed or approved as part of the Dock. As approved, the Dock will occupy 498 square feet, consisting of a 142-foot-long by 3-foot-wide access dock and a 12-foot-long by 6-foot-wide (i.e., 72-square-foot) terminal platform, and extending a total length of 154 feet. The access dock will be constructed with pressure-treated lumber planks spaced half-an-inch apart, to allow light penetration. The supporting pilings are comprised of PVC-encased aluminum, spaced approximately 9 feet, 5 inches apart. The PVC casing will help protect the piles from corrosion, thus helping to protect water quality. The terminal platform, which also will be supported by PVC-encased aluminum pilings, will consist of fiberglass grating, which allows sunlight penetration in order to prevent shading of seagrasses and other benthic resources.5 The top of the terminal platform is designed to be a minimum height of five feet above the mean high water line ("MHWL"). Handrails will be constructed along each side of the dock for its entire length, to prevent vessel mooring in adjacent shallow areas, thus helping protect against damage to benthic resources. The Dock will be used solely for the water-dependent activities of launching vessels and swimming. Only non-motorized vessels, such as kayaks, canoes, and paddleboards, may be launched from the Dock, and then only when there is a minimum depth of 0.5 feet (six inches, or half-a-foot) of water at the terminal platform.6 Additionally, the terminal platform must include signs of at least one-square- foot each placed on each side of the platform, stating "no mooring of motorized vessels allowed." A ladder is proposed to be located on one side of the terminal platform to provide access to the water for swimming or kayak launching, and the Dock Approval imposes a requirement that the ladder cannot be located over seagrass or hard bottom benthic communities. Although some turbidity in the water column may be generated by launching kayaks or other non-motorized watercraft from the terminal platform, the turbidity would be temporary and would not exceed that currently generated by dragging or hauling a kayak or other vessel from the shore across the substrate, to access sufficient water depth for launching. To prevent potential trapping, under the Dock, of sea turtles and other animals, such as Key Deer, an enclosure consisting of barriers one inch apart must be constructed beneath the portion of the Dock's landward access ramp having less than three feet of clearance above grade. 5 This is a standard construction material frequently used for docks in Florida. As further discussed below, the benthic survey performed for the area comprising the footprint of the Dock showed that no seagrass beds or other significant benthic resources are present. 6 The 0.5-foot water depth is keyed to the mean low water datum. At mean high water, the water depth at the terminal platform is approximately 1.2 feet. The competent, credible evidence establishes that the rest of the Dock will be elevated approximately five feet above the MHWL, so will be of sufficient height to allow animals to pass under without being trapped or impeded, and will provide sufficient clearance for sea turtle monitors to pass under as they traverse the beach. The competent, credible evidence also shows that the Dock will not impede the flow of water. The design is such that there are no structures on, or beneath, the Dock that will act as dams to prevent, or otherwise affect, the flow of water under and around the Dock. The water depth at the end of the terminal dock is 0.5 feet at mean low water, and 1.2 feet at mean high water. The Dock does not extend out to a depth of four feet of water. The competent, credible evidence establishes that the Dock will not interfere with navigation. The water depth between the shore and the end of the Dock's terminal platform is too shallow to accommodate motorized watercraft, and the Dock will be of sufficient height to enable persons using non-motorized watercraft to pass under it. The Dock will be constructed to meet the 2017 Southern Building Code, so will be able to resist 180-mile-per-hour, three-second wind gusts. The credible, persuasive evidence establishes that in a storm, the decking and stringers on the Dock will be washed off the pilings and will not become windborne projectiles. The Dock pilings will be imbedded into the substrate to a minimum depth of five feet, using a vibration hammer, rather than drilling and punching the pilings into the substrate. Using a vibration hammer will generate less turbidity in the water column than using the drill-and-punch installation technique, and turbidity curtains must be erected and maintained around the construction footprint to control turbidity and protect water quality. Additionally, the pilings will be installed using a spud barge elevated above the substrate, which also will help reduce turbidity during construction. Any turbidity generated during construction will be temporary. Installing the dock pilings using a vibration hammer also will generate less noise than the drill-and-punch technique. The Jacksonville Office of the National Marine Fisheries Service has issued a biological opinion stating that the vibration hammer installation technique "may affect/is not likely to affect" certain species listed as endangered, threatened, or of special concern. Additionally, because the Dock will be constructed in an open waterbody, the noise generated by piling installation is anticipated to be insignificant. Construction of the Dock may only be conducted outside of sea turtle nesting season, which runs from April 15 to October 31. Dock construction activities also must meet the requirements and standards established by the United States Fish and Wildlife Service to protect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. The 2011 Standard Manatee Construction Conditions for In-Water Work require vessels to navigate at slow speeds; manatee awareness signs to be posted; and construction to stop if a manatee is spotted within 50 feet of the construction site. In any event, manatees are unlikely to be present in the vicinity of the Dock, due to the very shallow water. The sea turtle and Smalltooth Sawfish construction conditions require vessels to operate at idle speeds in the vicinity of the project; turbidity curtains to be erected and maintained; and construction to be stopped if individuals of these species are observed within 50 feet of the construction site. The Eastern Indigo Snake, an upland species, is unlikely to be present at the Dock construction site. To prevent harm to individuals of this species, the letter of consent requires that educational materials be distributed to the construction crew and educational signs be placed at the construction site. No permanent exterior lighting is authorized for the Dock. This will prevent the Dock from attracting sea turtles and other marine species that are drawn to light. No turning basins, access channels, or wave break devices are proposed to be constructed for or used by the Dock. Fondriest's property has approximately 100 linear feet of riparian shoreline. There are no other docks existing on the shoreline along Long Beach Drive for at least 65 linear feet in either direction. The Dock will be constructed perpendicular to the shoreline, and will be located in Fondriest's riparian area, set back more than 40 feet from each riparian line demarcating her riparian area. Thus, the Dock will be located well outside the 25-foot setback from each riparian line. Biological and Other Resources in the Vicinity of the Dock Much of the shoreline along Long Beach Drive below the MHWL, including that along Fondriest's property, consists of bare, hard rock. The water is extremely shallow, and the bare rock is exposed at low tide. Site assessments conducted in 2020 at the location and in the vicinity of the Dock, show that limestone caprock, loose rubble, and some deeper depressions in the rock exist in the footprint of the Dock. The substrate consists of hard, highly uneven rock, with pools of tannin-stained water. Water pooled in the rock depressions is heated at low tide and, due to rotting vegetation, is nutrient-rich. The dissolved oxygen levels are very low, rendering the pools incapable of supporting substantial marine life other than cyanobacteria and filamentous algae, both of which indicate poor water quality. Some algae species are attached to the limestone caprock in the footprint and immediate vicinity of the Dock. However, recent biological resource assessments show that no seagrass beds, corals, or other hard bottom communities exist in the footprint of the Dock. Thus, the competent, credible evidence shows that there are no aquatic resources of any significant value in the footprint, or immediate vicinity, of the Dock. A small seagrass bed is located near the terminal platform. The letter of consent requires avoidance of this seagrass bed during construction and use of the Dock. Additionally, as discussed above, turbidity curtains must be installed to prevent turbidity and siltation of this seagrass bed during construction. The evidence establishes that the area waterward of the MHWL along Long Beach Drive generally supports a rich aquatic community. Fish and aquatic invertebrates inhabit the water in the vicinity, and numerous bird species use the area waterward of the MHWL, including that bordering Fondriest's property, as feeding and foraging habitat. However, no non-speculative evidence was presented to show that the construction, presence, and use of the Dock will result in adverse effects to this aquatic community, or to any plant or animal species in this aquatic community. Additionally, the competent, credible evidence shows that none of these resources exist in the footprint, or immediate vicinity, of the Dock, and conditions have been imposed in the letter of consent to ensure that the construction and use of the Dock will not adversely affect these resources. To the extent that the vibration hammer installation of the pilings will result in noise that may cause fish, birds, and other animals to leave the area, that effect will be temporary and will cease when piling installation is completed. Although some benthic or attached species, such as seahorses, may be unable to leave the area, so may be subjected to noise stress, no persuasive, non-speculative evidence was presented showing that these species inhabit the area in the vicinity of the Dock. Thus, any alleged harm to these species is speculative. Because the Dock may only be used for nonmotorized vessels such as kayaks and canoes, use of the Dock will not generate noise or otherwise adversely affect the aquatic habitat waterward of the MHWL along Long Beach Drive. The Key Deer is listed as an endangered species. Key Deer traverse and forage along the shore at Long Beach Drive. No credible evidence was presented showing that the Dock would adversely affect the ability of Key Deer to traverse and forage on the beach on, or adjacent to, Fondriest's property. As discussed above, the Dock will be elevated waterward of the MHWL to approximately five feet above grade. The evidence showed that this height is sufficient to allow Key Deer to pass underneath without being impeded or trapped. No credible evidence was presented showing that the three-foot wide access ramp would interfere with Key Deer foraging or traversing along the beach. The competent, credible evidence establishes that the Loggerhead Sea Turtle and Green Sea Turtle, both of which are listed as endangered species, use the beach above the MHWL along Long Beach Drive, including the beach on Fondriest's property above the MHWL, for nesting. The FFWCC has determined, through its Florida Sea Turtle Nesting Beach Monitoring Program, that the shore along Long Beach Drive has a relatively low nesting density—i.e., within the lower 25% of nesting density values—for both of these sea turtle species. The evidence establishes that the Hawksbill Sea Turtle, Kemp's Ridley Sea Turtle, and Leatherback Sea Turtle do not use the beach along the Long Beach Drive shoreline for nesting. No competent, credible evidence was presented showing that significant sea turtle food sources are present in the footprint, or immediate vicinity, of the Dock. The competent, credible evidence does not show that the Dock will adversely affect the habitat value of the beach on Fondriest's property for sea turtle nesting, or that it will otherwise adversely affect nesting sea turtles and hatchlings. As previously discussed, an enclosure will be constructed under the access ramp to prevent nesting sea turtles and hatchlings from becoming trapped under the Dock. The competent, credible evidence establishes that the Dock will not adversely affect other protected species, including the Lower Keys Marsh Rabbit, the Keys Rice Rat, or the Mole Skink—none of which inhabit or use the marine/beach habitat present along the shore at Long Beach Drive. To this point, no evidence was presented showing that these species are, or ever have been, present on the beach at Long Beach Drive. Thus, no evidence was presented showing that the Dock adversely affect these species. The Dock will be Located in a Resource Protection Area 3 Areas within aquatic preserves are classified as Resource Protection Area ("RPA") 1, 2, or 3, for purposes of imposing restrictions and conditions on the use of sovereignty submerged lands, to protect discrete areas having high quality and transitioning habitat. The RPA 1 classification applies to areas within an aquatic preserve that have resources of the highest quality and condition. Areas classified as RPA 1 are characterized by the presence of corals, marine grassbeds, mangrove swamps, salt marshes, oyster bars, threatened or endangered species habitat, colonial water bird nesting sites, and archaeological and historical sites. The RPA 3 classification applies to areas within an aquatic preserve that are characterized by the absence of any significant natural resource attributes. The RPA 2 classification applies to areas within an aquatic preserve that are in transition, either having declining RPA 1 resources, or new pioneering resources within an RPA 3. Recent biological resource assessments conducted at the location of, and in the immediate vicinity of, the Dock show that no mangrove swamps, salt marshes, oyster bars, archaeological or historical resources, or colonial water bird nesting sites are present. As discussed above, although sea turtles nest on the beach along Long Beach Drive, this area does not constitute significant sea turtle nesting habitat, and there is no significant food source for adult or juvenile sea turtles in the vicinity of the Dock. Thus, the evidence shows that the Dock will not be located in an RPA 1. The biological resource assessments also showed that no transitioning resources are present at the location, or in the vicinity, of the Dock. The competent, credible evidence showed that current natural resource conditions at the site are the same as those that historically existed before Hurricane Irma struck the Long Beach Drive area in 2013. Thus, the evidence shows that the Dock will not be located in an RPA 2. Because there are no significant natural resource attributes or transitioning resources in the footprint and the immediate vicinity of the Dock, it is determined that the Dock will be located in an RPA 3.7 7 Some portions of the CBAP do contain seagrass beds, offshore coral patch reefs, and mangrove swamp communities, and provide habitat for protected species, including the Key Deer and colonial water birds, and, thus, merit an RPA 1 classification. By contrast, none of these habitats and conditions are present at the location, or in the vicinity, of the Dock. The definitions of RPA 1, 2, and 3 in rules 18-20.003(54), (55), and (56), respectively, refer to "areas within aquatic preserves" which contain specified resources types and quality. Fla. Admin. Code R. 18-20.004(54) through (56)(emphasis added). Additionally, rule 18-20.004(1)(a) provides that in determining whether to approve or deny a request to conduct an activity in an aquatic preserve, the Trustees will evaluate each request on a "case-by-case basis." See Fla. Admin. Code R. 18-20.004(1)(a)(emphasis added). These rules make clear that determining whether an activity will be located in an RPA 1, 2, or 3 necessarily entails a site-specific resource assessment to determine the type and quality of habitat, and the conditions present, at that specific site. As discussed above, the site-specific biological assessments conducted show that the Dock will be located in an RPA 3, and Petitioners did not present any site- specific evidence to rebut that classification. Cumulative Impacts Analysis In determining whether an activity proposed in an aquatic preserve may be approved, an analysis must be performed to determine the projected cumulative impacts of the activity. This analysis focuses on determining the impact of the proposed activity, combined with that of similar existing activities and similar activities currently under consideration for approval. See Fla. Admin. Code R. 18- 20.006. A cumulative impacts analysis performed by Fondriest's expert witness, Sandra Walters, showed that the Dock, in conjunction with similar existing docks and all other applications for docks that could be proposed for approval, will not result in adverse cumulative impacts to the aquatic resources in the CBAP. Walters's cumulative impacts analysis took into account both the acreage and linear footage of parcels within the CBAP for which a dock similar to the one at issue in this proceeding could be approved for construction. In performing a cumulative impacts analysis using linear feet of shoreline, Walters calculated a total of 19,357 feet, or 22.6 miles, of shoreline in the CBAP. Of this linear footage, approximately 7,500 linear feet of shoreline along Long Beach Drive and approximately 1,200 linear feet of shoreline along the ocean side of the Cook's Island portion of the CBAP are developable, for purposes of having the potential to be developed for a minimum-sized single-family residential dock similar to that proposed in this case. Walters's estimate is conservative, in that it included, as developable linear shoreline footage, parcels that likely could not be developed due to rate of growth, conservation easement, or other land use or environmental restrictions. Walters's linear footage analysis showed that approximately 5.7% of the entire CBAP shoreline possibly could be developed for construction of a perpendicular dock. Assuming that each of these docks is four feet wide—which is a valid assumption, using the four-foot maximum access dock width permitted under the aquatic preserves rules—a total of .23% of the shoreline would be impacted if a perpendicular dock was developed on each eligible parcel. Walters opined, credibly and persuasively, that this impact to the resources in the CBAP would be de minimis. In performing a cumulative impacts analysis on an acreage basis, Walters calculated that if a minimum-size single-family residential dock were developed on each of the 68 total developable lots within the CBAP, a total area of approximately 34,000 square feet, or approximately .013% of the acreage in the CBAP, would experience impacts similar to those created by the Dock. Walter credibly and persuasively opined that this impact to the resources in the CBAP would be de minimis. Walters used a conservative approach—i.e., projecting a realistic "worst case" scenario—in performing the cumulative impacts analysis. Specifically, she considered all parcels for which a minimum-size single-family residential dock reasonably could be proposed for approval in the future, rather than limiting her consideration of cumulative impacts to only those currently proposed for approval by the listed agencies. Additionally, she included impacts of similar dock projects for parcels that likely would not qualify for dock approval due to development restrictions. Thus, the cumulative impacts that Walters projected in her analysis are likely greater than the actual cumulative impacts of similar dock projects that reasonably can be anticipated to be developed in the area in the future. Petitioners presented the testimony of Michael Czerwinski regarding the cumulative impacts analysis required under the aquatic preserves rule for approval of an activity in an aquatic preserve. Czerwinski's analysis projected the potential cumulative impacts if every parcel along Long Beach Drive were developed with a minimum-size single-family residential dock, including the parcels on which development restrictions have been imposed such that they would not be eligible to be developed for a single-family residential dock. Based on this assumption, Czerwinski opined that such "buildout" along Long Beach Drive would result in a "cascading" or "nibbling" effect on the resources in the CBAP, and that there would be adverse impacts on sea turtle nesting habitat. Additionally, based on the unsupported assumption of maximum "buildout" of a single-family residential dock on every parcel along Long Beach Drive, Czerwinski projected that the resources within the entire CBAP would be adversely affected as a result of the cumulative impacts from approval of the Dock. Czerwinski's cumulative impacts analysis did not take into account the numerous parcels in the CBAP, including several on Long Beach Drive, that are unable to be developed for single-family residential docks due to conservation easements and local land development restrictions. As such, his analysis considered impacts which could not reasonably be expected to result in the Long Beach Drive area from approval of the Dock. Additionally, based on the unreasonable assumption of maximum dock buildout on every parcel on Long Beach Drive, Czerwinski projected adverse impacts to the entire CBAP as a result of the Dock. This analysis again failed to take into account that numerous parcels within the boundaries of the CBAP that are not located in the Long Beach Drive area also are under development restrictions that will prevent the construction of docks on those parcels. Czerwinski's analysis did not comply with the provisions of rule 18-20.005(1) and (3), which expressly limit the consideration of impacts to only those likely to affect the preserve and which reasonably could be expected to result from the proposed activity. For these reasons, Czerwinski's testimony regarding cumulative impacts as a result of the Dock was not credible or persuasive. As discussed above, Monroe County has issued a permit authorizing the construction of the Dock. This evidences that the Dock is permissible under the Monroe County local comprehensive plan. Additionally, as discussed in detail below, the Dock is an allowable use that is consistent with the CBAP Management Plan ("Management Plan"). As previously discussed, the competent, credible evidence establishes that there are no significant biological resources in the footprint, or in the immediate vicinity, of the Dock. Thus, the Dock will not cause the loss of beneficial biologic functions that would adversely impact the quality or utility of the CBAP. As previously discussed, the competent, credible evidence establishes that the Dock will not cause the loss of the beneficial hydrologic functions, either in the immediate vicinity of the Dock, or in the CBAP. As discussed above, the Dock will be a minimum-size single-family residential dock that will not adversely affect the quantity or flow of water. Accordingly, it is determined that the Dock will not have adverse cumulative impacts on the CBAP. Consistency with the CBAP Management Plan The Management Plan expressly identifies single-family private residential docks as an allowable use within CBAP, and specifies the standards that such docks must meet. Specifically, a dock may not extent waterward of the MHWL more than 500 feet or 20% of the width of the waterbody; must be designed to ensure maximum light penetration; the terminal platform may not be more than 160 square feet in area; and the access dock may not be wider than four feet. As discussed above, the Dock will comply with these standards. The Management Plan also delineates "management areas" within the CBAP, and describes resources and allowable uses within the different management areas. The Management Plan states that final determinations of allowable uses within a particular management plan are made by agency staff on a case-by-case basis. The sovereignty submerged lands along Long Beach Drive, out to a distance of 500 feet from shore, are designated as "Management Area SF/1." The sovereignty submerged lands bordering Fondriest's property are included within the Management Area SF/1. The resources included in Management Area SF/1 generally include grass beds, fringing mangroves, coral banks, coral heads, and hardbottom communities. However, as discussed above, the site-specific biological resource assessment surveys conducted on the sovereignty submerged lands bordering Fondriest's property showed that none of these resources are present at, or in the vicinity of, the Dock site. Furthermore, private single-family residential docks are expressly identified as an allowable use in the Management Area SF/1. Long Beach Drive is not a pristine, undeveloped shoreline. There are residences and some commercial uses along Long Beach Drive, with accessory uses such as seawalls, revetments, and private docks. The Dock is consistent with these existing uses and with the aesthetics of the shoreline on Long Beach Drive. Based on the foregoing, it is determined that the Dock is consistent with the CBAP Management Plan.8 Petitioners' Interests and Timeliness of Crilly's Petition The Trust's Interests The Trust owns a parcel of real property located at 1975 Long Beach Drive, immediately adjacent to, and west of, Fondriest's property. Barry Roberts and Gloria Meredith are the trustees of the Trust. 8 Rule 18-20.004(7) states, in pertinent part: "[t]he aquatic preserve management plans shall be used by [DEP] to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve. The management plans for each aquatic preserve are available for guidance purposes only." Fla. Admin. Code R. 18-20.004(7)(emphasis added). Thus, to the extent a rule provision in chapter 18-20 conflicts with an aquatic preserve management plan, the rule controls. See Decarion v. Martinez, 537 So.2d 1083, 1084 (Fla. 1st DCA 1989)(an agency must follow its own rules). Neither Roberts nor Meredith, in their individual capacity, is a petitioner in these proceedings. Meredith testified that she and Roberts purchased the property at 1975 Long Beach Drive because of its location and the natural resources in the area, including the tide pool habitat in the rock depressions along the shore, and the animals that forage along, and inhabit, the shore. Meredith testified that she and Roberts both have a keen personal interest in, and use and enjoy, the natural resources along the shore at Long Beach Drive. They engage in bird watching; nature photography; kayaking; and observing nature, including Key Deer, birds, nesting sea turtles, and fish and invertebrates inhabiting tide pools in the rock depressions along the shore. After Meredith and Roberts purchased the property, they placed it in the Trust in order to preserve it, and its value as a residential property, for their children and grandchildren to enjoy in the future. Meredith and Roberts, as trustees of the Trust, have significant concerns about the aesthetic impact the Dock will have on the Trust property, particularly its impact on the view of the beach and the sunrise over the water. Meredith expressed her personal concern regarding the Dock's impacts on the biological resources at, and in the vicinity of, the Dock, and she also expressed concern that the Dock would interfere with her ability to safely walk along the shoreline. She testified that she was concerned that approval of the Dock would constitute a precedent, resulting in the construction of more docks and piers which would adversely affect the natural resources and the beauty of the beach. Meredith conceded that the Dock will be located within Fondriest's riparian area, will be set back more than 25 feet from the common riparian line, and will not cross the common riparian line into the Trust's riparian area. DeMaria's and Appel's Interests DeMaria is an original Petitioner in Case No. 20-2474, which is part of these consolidated proceedings, and Appel has moved to intervene and become a party to that case. DeMaria and Appel own the Deer Run eco-lodge bed and breakfast ("Deer Run") located at 1997 Long Beach Drive, immediately west of the property owned by the Trust. The Deer Run property is not located immediately adjacent to Fondriest's property. Appel owns two other parcels on Long Beach Drive, neither of which is located immediately adjacent to Fondriest's property. DeMaria testified that she and Appel purchased the Deer Run property because they were attracted to the unspoiled natural environment along Long Beach Drive. Deer Run attracts guests from around the world, who are drawn to the natural environment. These guests engage in nature photography and in-water recreational activities, such as kayaking, paddle boarding, and windsurfing; and they use and enjoy the natural resources and aesthetics of the area. DeMaria and Appel both testified that the presence of a long dock in close proximity to Deer Run would interfere with the view of the water and sunrise from Deer Run, and would significantly detract from the natural beauty and aesthetics of the environment at, and in the immediate vicinity of, Deer Run. Both testified that the presence of the Dock would render Deer Run a less attractive destination for guests. DeMaria testified that the presence of the Dock would interfere with her personal view of the water and the sunrise over the water; her ability to walk along shoreline below the MHWL; and her personal use and enjoyment of the natural beauty and aesthetics of the area. DeMaria also volunteers as a sea turtle nest monitor under the authority of Crilly's marine turtle permit. She expressed concerns similar to those expressed by Crilly—specifically, that the existence of the Dock would interfere with her ability to safely traverse the shoreline below the MHWL on Long Beach Drive to perform her sea turtle monitoring activities. Appel echoed DeMaria's concerns regarding the alleged injury to Deer Run's ecotourism business as a result of the Dock. He also testified that the presence of the Dock on Fondriest's property would injure his personal use and enjoyment of the natural beauty and aesthetics of the Long Beach Drive area. Appel also serves as a volunteer sea turtle monitor, and, in connection with that activity, traverses the shoreline along Long Beach Drive. He testified that the presence of the Dock would interfere with his ability to safely traverse the shoreline below the MHWL to conduct sea turtle monitoring activities. Appel also testified regarding the potential for the Dock to be damaged in storms, resulting in flying and floating debris that may damage his properties and the natural resources in the area. Crilly's Interests and Timeliness of Petition Crilly is the holder of a marine turtle permit issued by FFWCC, authorizing her to monitor sea turtle nesting along the beach at Long Beach Drive. Other volunteer sea turtle nest monitors work with Crilly under the authority of her permit. Crilly and her team of sea turtle monitors walk the beach daily during sea turtle nesting season. Crilly's responsibilities under the marine turtle permit include monitoring sea turtle nesting and false crawls; collecting data on the number of hatchlings that emerge from each sea turtle nest; and collecting data on sea turtle nesting mortality. The data are provided to the FFWCC for use in sea turtle research. Crilly testified that the Dock will impede her ability and that of her team to safely traverse along the shore below the MHWL to perform the sea turtle monitoring duties authorized under her permit. Specifically, Crilly testified that because the property above the MHWL is private, she must walk along the shoreline below the MHWL. The rock is slippery with numerous depressions, and traversing under the Dock would be treacherous. She testified that "I personally would not crawl under a dock and, therefore, I would not ask any of my volunteers on my team to crawl under a dock." According to Crilly, if she and her sea turtle nest monitoring team are unable to traverse the shoreline where the Dock will be located, they will be required to retrace their steps to the roadway on Long Beach Drive, walk down the road to a public access point, walk down to the beach, and walk back to the Dock, significantly increasing the time and effort to conduct their sea turtle monitoring activities. Crilly testified that she "learned of" DEP's approval of the Dock on December 30, 2019. No evidence was presented regarding whether, or how, Crilly received notice of the 2019 Approval sufficient to provide a clear point of entry for purposes of commencing the time for her to challenge that proposed agency action. Crilly filed her Petition challenging the 2019 Approval on February 27, 2020. When DEP issued the Dock Approval on September 30, 2020, superseding the 2019 Approval, Crilly already had filed her Petition at DEP, and the Petition had been referred to DOAH. IX. Findings of Ultimate Fact Regarding Compliance with Applicable Rules The term "dock" is defined in chapters 18-20 and 18-21. Chapter 18-20, applicable to aquatic preserves, defines a dock as "a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels either temporarily or indefinitely." Fla. Admin. Code R. 18-20.003(19). Chapter 18-21, which generally governs approvals to use sovereignty submerged lands, defines a dock as "a fixed or floating structure, including access walkways, terminal platforms, catwalks, mooring pilings, lifts, davits and other associated water-dependent structures, used for mooring and accessing vessels." Fla. Admin. Code R. 18-21.003(22). The Dock meets the definition of "dock" in both rules.9 As discussed above, the Dock Approval limits mooring to non-motorized vessels, and Fondriest, a riparian owner, will use the Dock to access the water for the water-dependent activities of kayaking, paddle-boarding, and other water-dependent activities such as swimming, snorkeling, and fishing, consistent with rule 18-20.004(1)(e)5. 9 The Dock is not a "pier," which is defined as "a structure in, or, or over sovereignty lands which is used by the public primarily for fishing or swimming." Fla. Admin. Code R. 18-20.003(41)(emphasis added). As discussed above, the Dock is a private single-family residential dock that will be constructed on sovereignty submerged lands waterward of Fondriest's property. It will not be open to, or used by, the public for fishing or swimming. As previously discussed, the Dock meets the 500-square-foot threshold for purposes of exemption from regulatory permitting, pursuant to section 403.813(1)(b). The evidence also establishes that the Dock is a "minimum-size" dock, as defined in rule 18-21.002(39). Specifically, the Dock's area has been reduced to the smallest size possible that will provide Fondriest reasonable access to the water for kayak launching. The Dock's reduced size also will minimize impacts to resources at, and in the vicinity of, the Dock. Thus, the Dock has been designed to minimize any adverse impacts to fish and wildlife and threatened and endangered species habitat, as required by rules 18-21.004(2)(b) and (i), and 18-21.004(7)(d). Compliance with Aquatic Preserve Management Policies, Standards, and Criteria Rule 18-20.004 establishes the policies, standards, and requirements for approval of uses of sovereignty submerged lands in aquatic preserves. As discussed above, the Dock extends a total of 154 feet waterward from the MHWL. This is substantially less than the allowable 500-foot maximum extent from the MHWL, and also is substantially less than 20% of the width of the Straits of Florida, which spans from the Florida Keys to Cuba. Thus, the Dock is consistent with rule 18-20.004(5)(a)1. The competent, credible evidence establishes that the Dock will not be located in an area of significant biological, scientific, historic, or aesthetic value. However, even if such resources were present, the Dock would not cause adverse impacts due to its specific design features and the use of best management practices during construction. As discussed above, the Dock will minimize shading by reduction of the width of the access dock from four feet to three feet; by elevation of both the access dock and the terminal platform five feet above mean high water; and by the use of light-penetrable grating for the terminal platform. The Dock is designed to ensure that vessel use will not cause harm to site- specific resources, as required by rule 18-20.004(5)(a)3. The types of vessels that may use the Dock are limited to non-motorized vessels, and the letter of consent is conditioned to allow vessel launching only when there is a minimum depth of 0.5 feet of water at the terminal platform. As previously discussed, the evidence establishes that the Dock will be located in an RPA 3. Nonetheless, the Dock will comply with design standards applicable to docks in an RPA 1 or RPA 2. Specifically, the Dock will be constructed of wooden planking less than eight inches wide, spaced half an inch apart after shrinkage; will be elevated five feet above the MHWL; and will have a terminal platform consisting of light-penetrable grating to minimize shading. As previously discussed, the terminal platform will have a total area of 72 square feet—well below the 160-square foot maximum size allowed in aquatic preserves under rule 18-20.004(5)(b)6. The Dock extends out from the shoreline to a depth of approximately -0.5 ft at mean low water. Thus, Dock meets the requirement that it may not extend out from the shoreline further than to a maximum water depth of -4 feet at mean low water. Fla. Admin. Code R. 18-20.004(5)(b)3. Consistency with Coupon Bight Aquatic Preserve Management Plan Rule 18-20.004(7), which addresses management plans for aquatic preserves, states, in pertinent part: "[t]he aquatic preserve management plans shall be used by the Department to preserve and restore the distinctive characteristics identified by the inventories for each aquatic preserve." Rule 18-20.004(3)(a) states, in pertinent part: "all proposed activities in aquatic preserves having management plans adopted by the Board must demonstrate that such activities are consistent with the management plan." For the reasons discussed in detail above, it is determined that the Dock is consistent with the Management Plan, and, thus, complies with rule 18-20.004(3)(a). Public Interest Demonstration Chapters 18-20 and 18-21 both require an analysis to determine whether an activity proposed to be conducted on sovereignty submerged lands meets an applicable public interest test. Rule 18-20.004(1)(b), the aquatic preserve rule's public interest test, states, in pertinent part: "[t]here shall be no further sale, lease or transfer of sovereignty lands except when such sale, lease or transfer is in the public interest (see subsection 18- 20.004(2), F.A.C., Public Interest Assessment Criteria)." However, with respect to private residential single-family docks, rule 18-20.004(4)(c) states, in pertinent part: "[f]or the purpose of this rule, a private, residential single-family docking facility which meets all the requirements of subsection 18-20.004(5), F.A.C., shall be deemed to meet the public interest requirements of paragraph 18-20.004(1)(b), F.A.C." Fla. Admin. Code R. 18-20.004(1)(b)(emphasis added). As discussed herein, the Dock meets all applicable requirements in rule 18- 20.004(5). Accordingly, the Dock meets the aquatic preserves public interest test in chapter 18-20. The Dock also meets the public interest test codified in chapter 18-21. Rule 18-21.003(53) defines "public interest" as "demonstrable environmental, social and economic benefits which would accrue to the public at large as a result of the proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action." Rule 18-21.004(1) states: "[f]or approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest." Fla. Admin. Code R. 18-21.004(1)(emphasis added). In this case, the Dock provides recreational water access to the riparian owner, and, as discussed extensively, will not have any adverse impacts on sovereignty lands, aquatic resources, or listed species. Thus, it is determined that the Dock is not contrary to the public interest, as defined in chapter 18-21. Petitioners assert that the Dock is inconsistent with article X, section 11 of the Florida Constitution, which states: Sovereignty lands. – The title to lands under navigable waters, within the boundaries of the states, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest. Fla. Const., art. X, §11 (emphasis added). Chapters 253 and 258, and the implementing rules codified in chapters 18-20 and 18-21, authorize the use of sovereignty submerged lands for private residential single-family docks when not contrary to the public interest. As discussed above, the Dock is not contrary to the public interest under chapters 18-20 and 18-21. Thus, the use of sovereignty submerged lands for the Dock is consistent with article X, section 11 of the Florida Constitution. Petitioners raised, as a public interest concern, their ability to walk below the MHWL along the shoreline on Long Beach Drive. The evidence shows that the Dock will, within its narrow footprint, present a minor hindrance to Petitioners' ability to walk unimpeded along the shoreline below the MHWL. However, the competent, persuasive evidence established that Petitioners will be able to duck under the Dock, or walk around the end of the terminal platform, where the water is relatively shallow. Importantly, Petitioners did not cite any statutory or rule provisions affording completely unencumbered access, by the general public, to all sovereignty submerged lands.10 Cumulative Impacts Rule 18-20.006 requires that an activity proposed in an aquatic preserve be evaluated for its cumulative impact on the aquatic preserve’s natural system. As extensively discussed above, Fondriest's expert, Walters, conducted a comprehensive cumulative impacts analysis that addressed all pertinent considerations in rule 18-20.006, and she concluded that the Dock will not have any 10 A key purpose of chapters 18-20 and 18-21 is to establish standards for approval of private uses of sovereignty submerged lands which may, to a certain extent, hinder the general public's access to those sovereignty lands. See Fla. Admin. Code R. 18-21.004 ("[t]he following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands"); and Fla. Admin. Code R. 18-20.004 ([t]he following management policies, standards, and criteria are supplemental to chapter 18-21 . . . and shall be uses in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands in aquatic preserves.") adverse cumulative impacts on the CBAP as a whole, or on any significant biologic, hydrologic, or other resources within the CBAP. As discussed above, Walters's analysis was comprehensive; her testimony was credible and persuasive; and her conclusion that the Dock will not result in adverse cumulative impacts to the CBAP, or to any resources within the CBAP, was rule- based, and considered all pertinent factual information. Based on the foregoing, it is determined that the Dock will not cause adverse cumulative impacts to the CBAP, or to any resources within the CBAP, as required by rule 18-20.006. Minimization of Adverse Impacts to Sovereignty Submerged Lands and Resources Rule 18-21.004(2)(b) states, in pertinent part, that activities that would result in significant adverse impacts to sovereignty lands and associated resources may not be approved. As discussed above, the evidence establishes that there are no significant natural resources present at the location, or in the vicinity, of the Dock. Thus, the Dock will not have adverse impacts on such resources or on sovereignty submerged lands. Nonetheless, numerous protective measures have been imposed as conditions to the letter of consent, to minimize the potential for adverse water quality impacts and to protect aquatic resources. Based on the foregoing, it is determined that the Dock will meet the resource impact minimization requirements in rules 18-20.004(5)(a)1. and 18-21.004(2). Measures to Avoid and Minimize Adverse Impacts to Listed Species and Habitat 18-21.004(7)(e) requires that "construction, use, or operation of the structure or activity shall not adversely affect any species which is endangered, threatened[,] or of special concern, as listed in rules 68A-27.003, 68A-27.004[,] and 68A-27.005." DEP consulted with FFWCC on the Dock application, to determine its potential impacts to species listed as endangered, threatened, or of special concern. As discussed above, FFWCC provided recommendations to minimize the Dock's potential impacts to several listed species, and those recommendations have been imposed as conditions to the letter of consent. As discussed above, the Dock will implement numerous measures to ensure that construction and use will not adversely affect manatees, sea turtle species, the Smalltooth Sawfish, and the Eastern Indigo Snake. As discussed above, Key Deer forage on and traverse the shore along Long Beach Drive. The competent, credible evidence establishes that the Dock will not impose any substantial barrier to the Key Deer's use of the shore on Fondriest's property, and will not otherwise adversely affect the Key Deer. Also, as discussed above, the competent, credible evidence establishes that due to the lack of suitable habitat, other protected species, such as the Lower Keys Marsh Rabbit, Keys Rice Rat, and Florida Keys Mole Skink are unlikely to inhabit, or otherwise be present at or near, the Dock site. Thus, it is determined that the Dock will not have any adverse impacts on these species. Based on the foregoing, it is determined that the Dock will not have adverse impacts to listed species and their habitat. Riparian Rights Chapters 18-20 and 18-21 require that the riparian rights of owners of upland riparian property adjacent to an activity seeking approval to use sovereignty submerged lands be protected. Rule 18-20.004(4) states, in pertinent part: "[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law and statutory riparian rights of upland property owners adjacent to sovereignty lands." Rule 18-21.004(3) states, in pertinent part: None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in section 253.141, F.S., of upland riparian property owners adjacent to sovereignty lands. Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to the uplands. All structures and other activities must be designed and conducted in a manner that will not unreasonably restrict or infringe upon the riparian rights of adjacent upland riparian owners. [A]ll structures, including mooring pilings, breakwaters, jetties and groins, and activities must be set back a minimum of 25 feet inside the applicant's riparian line. Exceptions to the setbacks are private residential single- family docks associated with a parcel that has a shoreline frontage of less than 65 feet, where portions of such structures are located between riparian less than 65 feet apart. Pursuant to rule 18-21.003(63), "satisfactory upland interest" means owning the riparian uplands or having some other possessory or use interest, as specified in the rule. Section 253.141(1) defines riparian rights as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law. Such rights are not of a proprietary nature. They are rights inuring to the owner of the riparian land but are not owned by him or her. They are appurtenant to and are inseparable from the riparian land. The land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach. Conveyance of title to or lease of the riparian land entitles the grantee to the riparian rights running therewith whether or not mentioned in the deed or lease of the upland. Fondriest owns the upland property riparian to the sovereignty submerged lands on which the Dock is proposed to be located, and Petitioners stipulated that she has a satisfactory upland interest for purposes of rule 18-21.004(3). The Trust owns upland property bordering the Straits of Florida; thus, riparian rights inure to the Trust property, pursuant to section 253.141. As previously discussed, the evidence establishes that the Dock will be set back over 40 feet from the common riparian line between Fondriest's property and the Trust's property. To this point, Meredith acknowledged that the Dock would be set back more than 25 feet from the common riparian line, and will not intrude into the Trust's riparian area. No evidence was presented showing that the Dock would unreasonably interfere with the Trust's traditional riparian rights of navigation, boating, swimming, or fishing within its riparian area. Meredith testified that the Dock would obstruct the view of the waterbody, the shore, and the sunrise over the water, from the Trust property. She appeared to assert these interests on behalf of the Trust and herself. However, as more fully discussed below, under Florida law, the riparian right to an "unobstructed" view does not entail a view completely free of any infringement or restriction by structures or activities appurtenant to neighboring riparian properties. Rather, the right to an "unobstructed" view means that a riparian owner is entitled to a direct, unobstructed view of the channel of the waterbody and a direct means of ingress and egress to the channel. No evidence was presented that the Dock—which will be constructed perpendicular to the shoreline within Fondriest's riparian area—would obstruct the Trust's or Meredith's view of the channel of the Straits of Florida. Additionally, as previously discussed, the Trust presented no evidence to show that the presence of the Dock in Fondriest's riparian area would interfere with the Trust's direct ingress and egress to and from the channel of the Straits of Florida. Accordingly, it is determined that the Dock will not unreasonably infringe on the Trust's riparian rights. Similarly, it is determined that the Dock will not unreasonably infringe on the riparian rights incident to the Deer Run property, or to Appel's properties on Long Beach Drive. To this point, Demaria and Appel did not present any evidence showing that the Dock will obstruct their view of the channel of the Straits of Florida, either from the Deer Run property, or from Appel's properties. DeMaria and Appel also failed to present evidence showing that the Dock would interfere with direct ingress and egress to and from the channel of the Straits of Florida, either from the Deer Run property or from Appel's properties. Accordingly, it is determined that, consistent with section 253.141 and rule 18-21.004(3), the Dock will not unreasonably infringe on the riparian rights of the Trust or of DeMaria and Appel. General Requirements for Authorization to Use Sovereignty Submerged Lands As discussed above, the Dock will be constructed and used in a manner that will avoid and minimize adverse impacts to sovereignty submerged lands and resources, consistent with rule 18-21.004(7)(d). The competent, credible evidence also demonstrates that the construction and use of the Dock will not adversely affect listed species, consistent with rule 18-21.004(7)(e). As discussed above, the Dock will not unreasonably interfere with the riparian rights of the Petitioners, consistent with rule 18-21.004(7)(f). Additionally, the Dock will not constitute a navigational hazard, consistent with rule 18-21.004(7)(g). Due to the shallow water in the footprint and in the vicinity of the Dock, navigation in the area is typically by kayak or canoe. The competent, credible evidence shows that the Dock will not impede navigation of these types of vessels. Because the sandy beach areas on Long Beach Drive are in private ownership, the Dock will not interfere with the public easement for traditional uses of sandy beaches, as provided in section 161.141, Florida Statutes; thus, the Dock is consistent with rule 18-21.004(7)(h). Also, as discussed above, the Dock will be constructed, operated, and maintained solely for the water-dependent uses of launching non-motorized vessels and swimming, consistent with rule 18-21.004(7)(j).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a Final Order granting Respondent Julia Fondriest's application for a Letter of Consent to Use Sovereignty Submerged Lands and verifying that the Dock is exempt from the requirement to obtain a regulatory permit, pursuant to section 403.813(1)(b). DONE AND ENTERED this 18th day of February, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 18th day of February, 2021. COPIES FURNISHED: Julia Fondriest Doug Scheele Lifetime Dock & Lumber, Inc. 24536 Overseas Highway Summerland Key, Florida 33042 Luna E. Phillips, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Deborah K. Madden, Esquire Gunster, Yoakley & Stewart, P.A. Suite 1400 450 East Las Olas Boulevard Fort Lauderdale, Florida 33301 Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
