Findings Of Fact On April 28, 1987, Nassau County applied to the Department of Environmental Regulation for a dredge and fill permit to construct a public boat ramp, dock, and unpaved parking lot within the landward extent of the St. Mary's River. The St. Mary's River is a class III water of the state, and is not an "outstanding" Florida water. The boat ramp is designed to be 12 feet wide and 66 feet long. The dock is designed to be 60 feet by 4 feet. The unpaved parking lot is designed to be 100 feet by 80 feet. The relationship of these projects is shown by the drawing that is R. Ex. 4. The jurisdiction of the Department of Environmental Regulation is determined by the dominant plant species on the land. Where there are no plant species, jurisdiction extends to the mean high waterline. With respect to the proposed boat ramp, dock, and parking lot, the DER's jurisdiction extends to the area above the blue line on R. Ex. 4. Thus, the DER jurisdiction extends to a small portion of the northwest corner of the parking lot, most of the dock (a 20 foot section of the dock ramp is excluded), and 44 feet of the end of the boat ramp that extends into the St. Mary's River. The small portion of the parking lot is not a deep swamp, but is a transitional wetland. This portion of the parking lot appears to be about 50 square feet of the total of 8,000 square feet of the entire parking lot, judging from the dimensions of the ramp and the dock on R. Ex. 4. The boat ramp will require the removal of 80 cubic yards of soil. The ramp is to be constructed at a place alone the river where there is no wetland vegetation of significance, and excavation will not remove any natural filtering vegetation of importance. At this point, the bank of the river is steep and the river is about 200 foot wide at this point, and has a relatively strong flow of water. The material to be excavated is fine. Any turbidity caused by excavation should be soon dissipated in the river. Physical barriers constructed during the excavation should adequately protect against excess turbidity. Special condition 3 of the proposed permit requires that turbidity controls be used throughout the project to contain any turbidity generated that exceeds state water quality standards. R. Ex. 3. The dock involves the placement of pilings on the river bottom along the shoreline of the river. If the dock were to be a private dock, it would be exempt from the requirement of a DER permit. The dock will not destroy wildlife habitat or cause the loss of important wetland. The flow of water would continue through and around the pilings of the dock and across the end of the ramp. The project would not change the natural flow of the river, cause erosion, or be a hazard to navigation. The project will not harm marine productivity. The project will not adversely affect public health, safety, or welfare. There are no significant historical or archeological resources affected by the project. The project will enhance fishing and recreational values by providing access to fishermen and boaters to the river. A small portion of the parking as shown on R. Ex. 4 will result in the destruction of a transitional wetland, but the portion is not significant in comparison with the remaining wetland. The alteration to the wetland is lessened by the fact that the parking lot will be unpaved. The Petitioners presented evidence as to alternative sites that may be available to the County for a boat ramp, and evidence that the proposed public boat ramp may harm the adjacent or nearby property of the Petitioners due to noise and litter from public use. There is no evidence that the project will have an environmental impact upon the property of the Petitioners.
Recommendation For these reasons, it is recommended that the Department of Environmental Regulation enter its final order issuing permit number 451193582 to Nassau County with the specific conditions contained in the intent to issue dated June 26, 1987. DONE and ENTERED this 11th day of March, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3838 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: 5 and the second sentence of 6. These proposed findings are issues of law, not fact. Findings of fact proposed by the Respondent: None proposed. COPIES FURNISHED: Gordon E. Hart, Esquire 205 Center Street Fernandina Beach, Fla. 32304 William H. Congdon, Esquire Assistant General Counsel Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Mullin, Esquire Nassau County Attorney Post Office Box 1010 Fernandina Beach, Florida 32304 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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
Findings Of Fact Petitioners are seeking a permit to cut a channel from a boat basin to the Caloosahatchee River. The basin, which has been constructed, is located approximately forty to sixty feet inland from the Caloosahatchee River. Petitioners are also seeking a permit to operate the proposed basin. The basin would serve as a recreational facility for a trailer park. The proposed basin has dimensions of approximately 140 feet by 148 feet. It is surrounded by a concrete seawall. The basin would provide facilities for approximately 20 boats no larger than twenty-two feet in length. The trailer park is located across the street from the river and basin. The street is approximately 600 feet from the river. Sewage treatment and water treatment plants for the trailer park are located in the corners of the park farthest from the river. The basin is surrounded by vegetation. All water going into the basin would be filtered through grass. The project is located approximately one mile east of the City of Alva, fourteen miles from the City of Tice, and seventeen miles from the City of Ft. Myers. The basin is eight and one-half miles up river from Lee County's pumping stations, which are used to pump water from the river to wells which augment the county's water supply. The Caloosahatchee River was channelized approximately twenty years ago. It no longer follows a natural course. The river is a part of the Cross Florida system connecting with Lake Okeechobee. The proposed boat basin would not enhance the waters of the Caloosahatchee River. The project could reasonably be expected to be a source of water pollution unless rules and regulations, which Petitioners have adopted, are scrupulously followed. These rules and regulations are set out in Figure 3 attached to Petitioner's Exhibit 7. If the rules and regulations are followed, the basin would not be a source of pollutants. There is no evidence in the record to the contrary. If the rules and regulations are not followed then there is a likelihood that the basin will be a source of pollutants, and that the pollutants would be discharged into the Caloosahatchee River. Petitioners do not object to having the proposed rules and regulations made a part and a condition of any permits issued by Respondent.
The Issue 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 The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
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 granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1995.
The Issue The issues to be determined in this case are whether the amendments to the Town of Ponce Inlet Comprehensive Plan adopted by Ordinances 2008-01 (2008 Amendment) and 2010-09 (2010 Amendment) are "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Petitioner, Pacetta, LLC, is a Florida limited liability company that owns real property in Ponce Inlet. Petitioner, Mar-Tim, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Down the Hatch, Inc., is a Florida corporation that owns real property in Ponce Inlet. Petitioner, Pacetta, LLC, controls and manages Mar-Tim and Down the Hatch. Petitioners' real property in the Town is directly affected by the challenged plan amendments. Petitioners submitted objections to the Town during the period of time beginning with the transmittal hearing and ending with the adoption of the challenged amendments. The Town of Ponce Inlet is a municipality in Volusia County that adopted a comprehensive plan in 1990 ("Town Plan"), which it amends from time to time pursuant to chapter 163, Florida Statutes. Petitioners' Property Petitioners' property is located on the north cut of the Ponce de Leon Inlet. The current uses on the property include a restaurant, a marina and boat repair yard with a marine travel lift, and vacant lands. An old cemetery is located on a portion of Petitioners' property. A shell midden (ancient refuse pile) is located on a portion of Petitioners' property. Petitioners' property has single family residences on three sides. A significant tree canopy is adjacent to Petitioners' property and large oak trees are on the property. A historic cemetery known as Pacetti Cemetery is near Petitioners' property. Several historic buildings are located near Petitioners' property. A museum and exhibit building are located nearby on Beach Street. Beach Street and Sailfish Drive are the main roads to access the Petitioners' property. These two roads have been designated by the Town as Scenic Roads. Petitioners' property comprises approximately 15 acres. About 2.4 acres are zoned for multifamily development. The remaining acreage is zoned Riverfront Commercial. There is also a special Riverfront Overlay District ("ROD") that covers Petitioners' property. Background There are at least three areas in the Town designated Riverfront Commercial. The Riverfront Commercial land use category permits wet boat storage, dry boat storage, boat sales and services, fishing charter boat dockage, fishing and boat equipment and supplies, seafood markets, restaurants, boatels, and boat construction and repairs. There is only one area in the Town designated ROD. In the ROD, land uses are more restricted. Dry boat storage facilities are allowed by special exception in Riverfront Commercial, but not within the ROD. The Town created the Riverfront Commercial District and the ROD in its Land Use and Development Code in 2004, but these land use categories were not identified in the Town Plan at that time. After the designation of the ROD in 2004, Petitioners began to acquire several parcels of land located within the ROD. The Town continued to engage its citizens in a visioning process for the Town's waterfront, which lead to the 2008 Amendment. As originally proposed, the 2008 Amendment allowed upland boat storage in the ROD under certain conditions in Future land Use Element ("FLUE") Policy 4.1.5. A citizens group obtained a sufficient number of signatures to place on the general election ballot a charter amendment to prohibit dry boat storage facilities in the ROD. Therefore, when the Town adopted the 2008 Amendment, it changed FLUE Policy 4.1.5 to prohibit dry boat storage facilities. Petitioners challenged the charter amendment in circuit court and the court determined that the charter amendment was invalid. The court also invalidated FLUE Policy 4.1.5, determining that the policy was only adopted to conform to the charter amendment. The circuit court decision was affirmed on appeal. Town of Ponce Inlet v. Pacetta, LLC, 63 So. 3d 840 (Fla. 5th DCA 2011). Petitioners also asked the circuit court to invalidate the ROD provisions of the Land Use and Development Code, but the circuit court declined to rule on their validity. Following the court's invalidation of FLUE Policy 4.1.5, the Town adopted the 2010 Amendment, which creates a new Policy 4.1.5. The new policy also prohibits dry boat storage facilities in the ROD. Petitioners' Objections Petitioners' overarching objection to the plan amendments is that they prohibit Petitioners from building a dry boat storage facility. Petitioners claim the prohibition is inconsistent with other policies of the Town Plan and is not supported by data and analysis. The term "dry boat storage facility" is not defined in the Town Plan. The Volusia County Manatee Protection Plan ("MPP"), which is adopted by reference in Coastal Management Element ("CME") Objective 1.6, defines dry boat storage facility as "an upland structure used for storing watercraft." Petitioners already store some boats on trailers or boat stands on the upland while they are being repaired or refurbished in the boatyard. The Town interprets the Town Plan to allow this type of upland storage in the ROD, citing FLUE Policy 4.1.4 of the 2008 Plan Amendment which explains that dry boat storage means "multiple level boat racks" in "fully enclosed buildings" and not the "[l]imited storage of boats on trailers or boat stands" in conjunction with boatyard operations. FLUE Policy 4.1.5 Petitioners' objections to FLUE Policy 4.1.5, which was adopted in the 2010 Amendment, are addressed first because the associated issues affect the other policies that have been challenged. FLUE Policy 4.1.5 states: The Town shall maintain a zoning overlay district over those Riverfront Commercial and High Density Multi-family Residential lands west of Sailfish Drive, south of Bounty Lane and north of the most southerly portion of Sailfish Drive to promote the water-oriented character of the River and compatibility with adjacent residential properties, to ensure protection of view corridors of the River and the tree canopy in the Front Street Area, and to preserve the historic setting and unique character of this area, including, but not limited to, the scenic roads of Beach Street and Sailfish Drive. Dry boat storage facilities shall be prohibited within this overlay district. Petitioners argue that the prohibition against dry boat storage facilities in Policy 4.1.5 conflicts with the MPP adopted by reference in the Town Plan because the MPP expresses a preference for dry slips over wet slips. The MPP includes a Boat Facility Siting Plan, which contains requirements that must be met for new or expanded marina facilities. The Plan requires the Town to place a priority on the development of boat slip capacity at or south of Ponce de Leon Inlet, to encourage marinas to include both wet slips and dry slips, and to "utilize dry storage to the fullest extent possible in addition to wet slips." The Boat Facility Siting Plan includes best management practices ("BMPs"). One of these BMPs is "Use of upland dry storage shall take precedence over the creation of new wet slips." The prohibition against dry boat storage facilities in the ROD will likely reduce the number of boats launched in the ROD because fewer boats can be accomodated in wetslips than in upland dry boat storage facilities.2/ This proposition was not rebutted by Petitioners. A major objective of the MPP is to reduce manatee injuries and deaths due to collisions with boats. The fewer boats, the fewer potential collisions with manatees. Therefore, the effect of the prohibition against dry boat storage facilities in the ROD is consistent with the objectives of the MPP. Dry boat storage facilities are allowed elsewhere in the Town. The design standards and BMPs in the MPP are described as permitting requirements, not as zoning or land use restrictions. The MPP does not state that all of its design standards and BMPs must be reflected in every permit issued by the Town, County, or State. It does not require, for example, that every marina must have more dry slips than wet slips. The MPP acknowledges that marina sites must conform to local land use and zoning regulations that affect the construction of new wet and dry slips. Under the Policy 4.1.5, utilizing dry storage to the fullest extent possible in the ROD means allowing upland storage of boats on trailers and boat stands in conjunction with boatyard operations. Petitioners also contend that Policy 4.1.5 is not supported by relevant and appropriate data and an analysis by the Town. The prohibition against dry boat storage facilities in the ROD is supported by data and analysis that shows that the noise, fumes, traffic, scale, and appearance of dry boat storage facilities is incompatible with residential uses and with scenic, historic, and natural resources nearby. Petitioners showed that some of the same incompatibility factors exist in other Riverfront Commercial areas, but the factors are not as numerous and pronounced as they are in the ROD. FLUE Policy 1.2.2(g) Petitioners challenge FLUE Policy 1.2.2(g), which limits the floor area for buildings within the Riverfront Commercial District (including the ROD) to 5,000 square feet. Petitioners argue that this limit is in conflict with CME Policy 1.6.6, which requires the Town to adopt and maintain a boat slip allocation program pursuant to which the Town made an allocation of 213 dry slips to Petitioners' property. As discussed in the Conclusions of Law, this argument cannot be raised in this proceeding because the 5,000 square- foot limit was already in the Town Plan before the 2008 Amendment. Petitioners argue that the floor area limit is subject to compliance review in this proceeding because its effect has been substantially altered by new provisions in the 2008 Amendment. The 2008 Amendment added a floor area ratio (gross floor area of buildings divided by upland lot area) limit of 35 percent for Riverfront Commercial, and an increase in floor area up to 10,000 square feet is made possible in a new Planned Waterfront Development District. However, these and other changes in the 2008 Amendment do not alter the fundamental effect of the existing floor area limit. The Town has adopted a boat slip allocation program as required by CME Policy 1.6.6. The allocation of 213 dry slips to Petitioners' property is not required by Policy 1.6.6 or by any other policy in the Town Plan. Petitioners cannot base a claim of internal inconsistency on matters that are external to the Town Plan.3/ Even if the floor area limit in FLUE Policy 1.1.1(g) is subject to compliance review, it is not inconsistent with the MPP for the same reasons that the prohibition of dry boat storage facilities in FLUE Policy 1.4.5 is not inconsistent with the MPP. FLUE Policy 4.2.4 Policy 4.2.4 of the 2008 Amendment states that, in developing design standards for a new Planned Waterfront Development District, limited exceptions might be allowed to the floor area limit of 5,000 square feet, up to 10,000 square feet, but this exception will not apply to dry boat storage facilities. No Planned Waterfront Development District has yet been created in the Town. Despite Petitioners' objection to the 5,000 square- foot floor area limit generally applicable in Riverfront Commercial, Petitioners argue that there is no data and analysis to support the Town's allowance for an increase in the floor area limit to 10,000 square feet in a Planned Waterfront Development District. The knowledge of what a 5,000 square foot or a 10,000 square foot building looks like is all the data needed to set a limit based on scale. CME Policy 1.6.6 CME Policy 1.6.6 of the 2008 Amendment states: The Town shall maintain and enforce its boat slip allocation program. This program shall provide for equitable allocations of new wet and dry slips. Upland slips may be permitted under this allocation program if they can meet the requirements of the Comprehensive Town and the Town Codes. Upland/dry slips development shall be balanced against other community policies, including neighborhood compatibility and visual impacts. Dry slips shall not take precedence over wet slips based solely on environmental concerns. Petitioners contend that Policy 1.6.6 conflicts with the building size limitations in FLUE Policies 1.2.2(g) and 4.2.4 and with the prohibition against dry boat storage facilities in FLUE Policy 4.1.5 because the size limits and prohibition do not allow for the balancing called for in Policy 1.6.6. Petitioners are interpreting the policy more literally than the Town. Things are not going to be placed on scales and made to balance in the middle. The Town interprets the policy to direct the Town to consider competing policies according to their relative importance. In Riverfront Commercial areas other than the ROD, there can be combinations of wet and dry slips, including dry boat storage facilities, but the floor area limit of 5,000 square feet is a "community policy" that will also apply to affect the outcome of the balancing. In the ROD, the prohibition against dry boat storage facilities is another community policy that must be applied. The Town has established a community policy to prohibit dry boat storage facilities in the ROD because the Town has determined that such facilities do not harmonize with nearby residential uses and scenic, historic, and natural resources. Data and analysis support this determination. Although Petitioners got a Town witness to testify that a prohibition does not allow for balancing, the record shows that the Town gives no weight to the desirability of dry boat storage facilities in the ROD and some weight to the desirability of wet slips, so that the scales always tip in favor of wet slips and for boats on trailers or boat stands in a boatyard. Petitioners contend that the statement in FLUE Policy 1.6.6 that "Dry slips shall not take precedence over wet slips based solely on environmental concerns," is directly in conflict with the MPP, because the MPP states a preference for dry slips based specifically on environmental concerns (manatees). However, the meaning of the policy statement is that environmental concerns, alone, will not determine how many dry slips are allowed. Other concerns will be taken into account in determining how many dry slips are allowed. That is not inconsistent with the MPP. Recreational and Working Waterfronts Petitioners contend that the floor area limit in FLUE Policy 1.2.2(g), the prohibition against dry boat storage facilities in FLUE Policy 4.1.5, and the floor area limit for dry storage facilities in FLUE Policy 4.2.4 are inconsistent with section 163.3177(6)(a)3.c., which requires a FLUE to include criteria to "[e]ncourage preservation of recreational and commercial working waterfronts for water-dependent uses in coastal communities." The term "recreational and commercial working waterfronts," is defined in section 342.201(2)(b): "Recreational and commercial working waterfront" means parcel or parcels of real property that provide access for water- dependent commercial activities or provide access to the public to the navigable waters of the state. Recreational and commercial working waterfronts require direct access to or a location on, over, or adjacent to a navigable body of water. The term includes water-dependent facilities that are open to the public and offer public access by vessels to the waters of the state or that are support facilities for recreational, commercial, research, or governmental vessels. These facilities include docks, wharfs, lifts, wet and dry marinas, boat ramps, boat hauling and repair facilities, commercial fishing facilities, boat construction facilities, and other support structures over the water. There is no current use of Petitioners' property that is prohibited by the challenged amendments. In other words, Petitioners' working waterfront is preserved. To the extent section 163.3177(6)(a)3.c. should be interpreted more broadly to encourage not only preservation, but also economic vitality through further development and redevelopment of waterfronts, the Town has adopted FLUE criteria to encourage their development and redevelopment. The floor area limit and the prohibition against dry boat storage facilities in the ROD do not prevent Petitioners from further developing their working waterfront to add or expand uses. Evaluation and Appraisal Petitioners challenge FLUE Policies 1.2.2(g) and 4.2.4 and CME Policy 1.6.6 as constituting a failure of the Town to update its plan to address the changes needed as identified in the Town's Evaluation and Assessment Report ("EAR"). Petitioners failed to prove that the Town did not make the changes identified in the EAR. Summary Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment create internal inconsistency in the Town Plan. Petitioners failed to prove that the 2008 Amendment or the 2010 Amendment is not supported by relevant data and analysis. Petitioners failed to prove beyond fair debate that the 2008 Amendment or the 2010 Amendment is not in compliance.
Recommendation Based on foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the plan amendments adopted by Town Ordinances 2008-01 and 2010-09 are in compliance. DONE AND ENTERED this 20th day of March, 2012, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2012.
Findings Of Fact Chapter 216.14, Laws of Florida, 1941, establishes the Ponce de Leon Inlet and Port District for the primary purpose of obtaining land and easements to be turned over to the U.S. Government in connection with various harbor and channel improvements in Volusia County. The name and authority was changed in 1963, 1965 and 1969, so that now it is called the Ponce de Leon Port Authority whose powers were expanded to include "long-range development of the facilities for ports and recreation facilities within the district and traffic through these said ports." (Exhibit 1). In 1964 the qualified electors of Ponce de Leon Inlet and Port District approved the issuance of $4,000,000 special obligation bonds for the purpose of creating port and harbor facilities. Federal legislation authorized the stabilization of Ponce de Leon Inlet conditioned upon local authorities, viz. the Port Authority, complying with certain provisions such as paying part of the cost, providing spoil disposal sites, easements, etc. and providing "necessary mooring facilities and utilities including an adequate public landing or wharf with provisions for the sale of motor fuel, lubricants and potable water, equal to all on equal terms." (Exhibit 4). Pursuant to such federal legislation the channel improvements were completed in 1970-71. The availability of mooring and harbor facilities was an element used in determining the favorable cost-benefit ratio for the channel stabilization project. (Exhibit 2). The Port Authority's application in 1971 to the then Department of Pollution Control for a permit to construct a port and marina facility north of Ponce de Leon Inlet was denied. Thereafter an extended search for a suitable site was instituted. Included in this study are plans for a waterfront park which are referred to in various exhibits but are not a part of or integral with the application here under consideration. The Volusia County Planning Department was retained by the Port Authority to work on site selection and site design. After surveying existing marinas and determining that a need for the proposed marina existed, the planners determined that to meet the expressed need for a marina the site would require a minimum of twenty acres to accommodate water and land based boating facilities. Also, the site must satisfy the following requirements: It must be located to serve both New Smyrna Beach and Daytona Beach. The land use in the vicinity of the site must be compatible with the proposed marina. The site must be readily accessible by both land and water. There should be a minimum conflict with vehicular traffic over bridges which need to be opened to allow boat traffic. Municipal services such as electricity, water and sewage disposal facilities must be available. Topography of site must be such as to accommodate the construction of a marina. The site must offer protection to moored boats from wind and wave action. Consultants were employed to locate potential sites within the study area and six sites were identified with potential for developing a marina thereon. Three of these sites were quickly ruled out because of ecological factors and access problems, and various studies were conducted over a six months' period to evaluate the plant and animal life occupying the other three sites. In 1976 the results of the investigations, studies and meetings with various government agencies were documented in Marina and Park Study (Exhibit 8) which constituted the recommendations of the Volusia County Planning Department as adopted by the Port Authority. Upon completion of the study it was determined that Site V comprising some 90 acres which was given to the Port Authority by the City of New Smyrna Beach to whom title had earlier been conveyed by the Trustees, Internal Improvement Trust Fund, offered the best site for the project. Part of this tract consisted of a spoil disposal site upon which the New Smyrna Power Plant had been built. In addition to spoil disposal in this area some dredging had been done both north and south of the power plant site to provide access by fuel barges and other boats. Thus part of the area had previously been disturbed by man's activity and was no longer pristine. This site is close to Ponce de Leon Inlet and boats going from the marina to the ocean would have no drawbridges to pass under; the site is readily accessible from U.S. 1; Municipal facilities are available at the site; an industrial park has been established at the airport across U.S. 1 from the site thereby providing space for businesses to serve the proposed marina; the topography of the site is suitable for a marina; and the site will provide protection from wind and waves to boats moored there. Plans for the construction of the proposed marina were prepared and submitted to DER for the issuance of a permit. The Port Authority's position in 1976, which is substantially the same as now, is succinctly stated in Exhibit 8, p. 5, as follows: The Ponce de Leon Port Authority is committed ideologically and contractually to the provision of these facilities and fulfillment of these needs subject to state and local cooperation in permitting land acquisition and construction. In many respects the proposed park-marina is in fact a completion of park and recreation plans prepared as part of the original inlet stabilization proposed by the Corps of Engineers. Those parts of the current proposals not specifically contained in the plans prepared by the Corps of Engineers are modifications or logical extensions of the ideas contained therein. Numerous conferences between representatives of the Port Authority and officials of DER resulted in two modifications of the original development proposal. On each of these modifications the Petitioner further reduced the dredged area containing the most productive habitat. The final proposal, for which the application for permit was denied and is the subject of this hearing, reduced the area of mangroves to be dredged to approximately five acres and contained a design which would provide 90 percent flushing of the marina area each one-half tide cycle. By this application Petitioner seeks to construct a marina to accommodate 40 commercial vessels and 136 recreational boat slips (Exhibit 15) with the commercial boats and recreational boats on separate sides of the upland area involved. Ecological Considerations Involved The entire site owned by Petitioner and comprising some 90 acres is an impounded area bounded on the east by the Intracoastal Waterway (ICW); on the south by a road providing access to Inlet Shores, a residential development erected on a former spoil disposal site immediately south of Petitioner's property; on the west by U.S. 1 and east of that by a power line road; and to the north by the access road to the power plant site. The power line road which runs north - south and is east of U.S. 1 is breached in several places and some tidal effects are present in the marshy area between the power line road and U.S. 1. Petitioner proposes to dredge 327,000 cubic yards of which 93.5 percent is seaward of mean high water. Part of this dredged material would be used to fill and develop upland portions of the marina site, and the remainder will be deposited on disposal sites generally west of the power line road. The dredging will be done by suction dredges, and necessary safeguards will be provided to prevent turbidity or water degradation during the dredging and filling operations. To provide 90 percent flushing of the marina basin on each one-half tide cycle the water portion of the marina will be dredged to ten feet below mean low water. Of the uplands and tidal areas proposed to be dredged 0.66 acre is populated by red mangroves, 4.28 acres are populated by black mangroves, and 7.52 acres are populated by Batis/Salicornia. The fill area comprises 1.02 acres of black mangroves and 9.43 acres of Batis/Salicornia. (Exhibit 42). These vegetations are approximate because each specie is not the sole occupant of the area but merely the dominant specie thereon. Plant species in this site also include Spartina and Barrichia. To provide the 90 percent flushing of this proposed marina Petitioner proposes to make the power plant and uplands marina site into an island connected to the mainland by a bridge. This will result in eliminating the existing power plant access road and replacing it with a rerouted road and the construction of a bridge spanning the channel connecting the commercial and recreational slips. Petitioner proposes to bulkhead around the upland area of the marina and to stabilize the south side of the marina channel with rip-rap. The project slope of this channel, which abuts the area of greatest ecological significance, is two to one. Connected to the proposed marina basin to the south of the project site is a shallow tidal creek two or three feet deep which extends southward through the impounded property and provides a flushing channel for the entire impounded area east of U.S. 1. This tidal creek is the most significant ecological feature of this tract and is little affected by the proposed dredging. The proximity of this site to Ponce de Leon Inlet gives it a coastal oceanic component imposed on what would otherwise be simply an estuarine system. This component is evident from the aquatic species inhabiting the site. This is significant in that there is an import of food from the ocean as well as an export of food from the estuary both adding to the food chain at this location. Tidal range in most of the area is approximately 2.5 feet. This tidal range decreases to less than one foot west of the power line road. The few breaks in the power line road allow this tidal component to enter this area, but the reduced tidal component is due to the barrier presented by the power line road. As a result of this lower tidal range the flora west of the power line road has a much smaller red to black mangrove ratio and is generally less productive. Furthermore, greater freeze damage has occurred west of power line road than east of it; however, there remains considerable evidence of extensive freeze damage to black mangroves in the western portion of the tract east of power line road. The last freeze causing extensive damage occurred in 1977. In connection with the proposed marina project Petitioner proposes to install culverts under the power line road to allow more tidal flushing west of power line road. This will increase the productivity and ecological value of this area and thereby increase the productivity of the impounded area comprising this estuarine system. No evidence was presented from which the quantum of this increase can be determined. The most ecologically significant vegetation in this site is located adjacent to the IC and immediately south of the proposed entrance channel to the marina. Earlier applications included dredging in this area. Although not the most significant in the tract, those areas now proposed to be dredged are ecologically productive and provide sanctuary and nursery habitat for aquatic species important to the fishing industry. In this connection, studies conducted by Respondent show this area to be much more productive than do the studies conducted by Petitioner. Respondent's studies were conducted for a one- year period; Petitioner's studies were completed in six months. Additionally, Respondent used a smaller seine opening, thereby capturing a large number of small animals that could have passed through Petitioner's seines. Accordingly, more credence is given to the Respondent's evaluation of the productivity of the impounded area than is given to Petitioner's evaluation of this productivity. Biomass studies were not conducted by any of the parties hereto. Therefore, a quantitative evaluation of the loss to the site by the proposed dredging cannot be made. Suffice it to say that this loss to the ecology caused by the dredging is significant, and this significance is demonstrated by the variety of species found in the area. Water Quality Degradation With respect to water quality degradation the parties have stipulated that there will be no short-term water quality degradation due to the construction of the proposed marina. If short-term degradation will not occur due to construction it would seem obvious that this construction could not cause long-term degradation of water quality. Water quality degradation resulting from operation of the proposed marina can only be addressed by considering measures proposed by Petitioner to insure the integrity of the water quality against those forces that would cause degradation. Those forces primarily attested to include oil and gas spills, waste from moored boats, discharge from upland areas, and paint flakes from boat bottoms. The assurances that water quality degradation will not result from marina operations is provided by the necessary equipment to clean up any accidental oil or gas spills; adequate waste disposal facilities at the marina plus regulations precluding people from living aboard boats that are moored at the marina; provisions for retention of water runoff on the upland area of the marina; and 90 percent flushing on each one-half tide cycle designed into the project. This constitutes reasonable assurances that long-term degradation of water quality will not occur. Respondent's witnesses' testimony that long-term water quality degradation could occur in the estuarine channels south of the marina basin is based on the assumption that oil spills and discharge from boats is inevitable, that some of these contaminants would be carried by incoming tides up the estuarine creeks, that all of these contaminants will not exit with the outgoing tides, and consequently these contaminants will build up to a point the quality of the water will be below minimum standards. No evidence to support these assumptions was presented. While it is possible or even probable that some contaminants will enter the shallow estuarine channels on incoming tides, most of these contaminants will also exit on outgoing tides. Some of the contaminants that do not exit the estuarine channels through the marina basin will exit these channels through the mangroves on outgoing tides directly to the ICW. Other contaminants will be assimilated and absorbed by the plant life in this system. Absent flagrant violations of all laws and regulations protecting water quality, the design and equipment proposed does provide reasonable assurances that water quality will not be degraded. Responsible enforcement of these various laws and regulations will preclude flagrant violations. Wildlife Interference Manatees have been sighted in the vicinity of the power plant site. It is also an accepted fact that manatees are known to congregate near warm water discharges from industrial plants. The power plant has its water intake on the north side of the plant and its discharge on the south side of the plant site into the proposed channel to be used by recreational boats entering the marina. From these facts Respondent concludes that the proposed marina would increase the frequency of harmful and fatal encounters between boats and manatees. Manatees have been sighted in many areas of the ICW between New Smyrna Beach and Daytona Beach with the only concentration reported at the warm water discharge from the sewage treatment plant at Edgewater (just south of New Smyrna Beach). No evidence was presented from which it can be concluded that greater danger to manatees will result if the marina is located as proposed rather than at another site. Boats generally enter marinas at reduced speeds due to the restricted area in which they must operate, the potential damage wakes could create for moored boats, and the increased danger of collision with boats or docks while operating in restricted waters. While operating at reduced speeds it is less likely that a boat will hit a manatee than when operating at high speed and, if such a collision does occur, the damage to the manatee or the boat will be much less. Furthermore, without a marina near the entrance to Ponce de Leon Inlet boats will travel a much greater distance in the ICW (and at higher speeds than when entering the marina) while making a voyage to the ocean and back. This increased travel in the ICW would increase the probability of collision with a manatee more than would a concentration of boats at the marine. Various birds, some of which are endangered species, have been sighted in the area herein involved. No specific damage to these birds was shown by the proposed marina other than the potential effect removal of the productive vegetation would have on these animals. No evidence was presented that any of these endangered species nest in this area or that removal of productive vegetation would have any specific adverse effect on these birds. Public Interest and Benefits As noted above, one of the factors used to arrive at a favorable cost to benefit ratio for the channel stabilization project at Ponce de Leon Inlet was the construction by local authorities of port facilities where fuel and docking spaces would be available to the public. Surveys of existing facilities were conducted in connection with the Marina Port Study 1976 (Exhibit 8). This revealed existing marinas were full and that a substantial waiting list for berths at these marinas existed. At this time the registered boats per 1,000 population in Volusia County was 43.2. (Exhibit 11). The significance of this figure is that it shows a substantial increase since 1967, and by 1980 the registered boats per 1,000 population was 57. At the same time the population of Volusia County was also increasing each year. Available slips for boats have not kept up with these increases; in fact, statistics presented show a further widening between the number of boats and the availability of berths in Volusia County. This is also reflected in the increase in number of boats on the waiting lists at those marinas polled. Facilities for commercial fishing vessels designed to work out of Ponce de Leon Inlet are minimal. While some docking facilities exist, these consist only of piers to which to moor. Fuel is available at only a few marinas, and then by tank truck. Inadequate facilities are available in this area for unloading the catches from commercial fishing vessels. Some 30 fishing vessels are owned by local residents. Thirteen of these owners submitted signed statements that they needed and would use the proposed facility for all the needs of their vessels. Marina owners and fish house operators testified in opposition to the proposed marina, contending that a marina constructed with tax revenues and low interest loans would offer unfair competition to them, that their facilities were adequate to meet the existing needs for marina and fishery services, that if the public facility was not built they would expand their facilities to meet the need, that there are insufficient fish to provide a source to support the additional boats to be attracted by the marina, and that no increase in the available fish to be taken off Ponce de Leon Inlet is a realistic concept. While there have been wide fluctuations in the annual fish harvest in this area, the average fish catch over the past ten years indicates that this harvest is now at or near its maximum sustainable yield. Therefore, a significantly increased harvest is not anticipated. This does not mean that if facilities for off-loading fish are provided by the proposed marina that there will not be a substantial increase in the quantity of fish landed here. If so, this would mean that these fish loadings would be taken from another port. While this would result in no economic increase for Florida (assuming the landings were taken from Cape Canaveral), it would represent an economic benefit for Volusia County. Considerable testimony was presented respecting the desirability and economic feasibility of governmental intrusion into private enterprise which will occur if the marina is constructed by the port authority as proposed. The answer to such a question is predominantly a political one which has been answered in favor of such intervention by the voters. The evidence that a business enterprise is more efficiently run by private interests than by a governmental entity was not disputed. However, there are occasions where the size of the project, the risks involved, or the necessity for the project is such that it will only be done if constructed by a governmental entity. Classic examples of such projects are airports, bridges, tunnels, low-cost housing projects, large reclamation projects, and port and harbor facilities. There are also many marinas that have been constructed and run by public bodies such as cities, port authorities or other political subdivisions. The facilities when completed are to be leased to private enterprise to operate these facilities. This will be more efficient than if the port authority operated the facility. The primary, if not sole, consideration used by Respondent to deny the permit was the destruction of productive habitat that will result from the construction of this marina. No evidence was presented that Respondent weighed the loss of habitat against the public need for the marina; or, if such was done, the factors used in determining the weight to be given to each. At the hearing evidence of need (and lack thereof) for a marina was presented as well as evidence bearing on the economic feasibility for this marina. After considering all of the testimony I find that the construction of the marina will result in the destruction of valuable habitat, that the slips to be provided at this marina are needed for both commercial fishing boats and recreational boats, and that the marina will provide economic benefits to Volusia County. Balancing the loss to be caused by the proposed dredging and filling against the gain to the people of Volusia County and the surrounding area by the construction and operation of the proposed marina, I find construction of the marina not to be contrary to the public interest.
The Issue Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005.
The Issue Whether the Lee County Sheriff’s Office (“LCSO” or “Respondent”) correctly determined that a vessel owned by Gary Janikula (“Petitioner”) was a “derelict vessel” or an “abandoned vessel” on the waters of the state of Florida, within the meaning of section 823.11, Florida Statutes (2020), and therefore, subject to the provisions of sections 376.15, 705.101, 705.103, and 823.11, Florida Statutes (2020).
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: Mr. Janikula is the registered owner of a 35-foot pontoon houseboat,6 registration number FL3396HP (“pontoon houseboat”), found in the public waters of Lee County, Florida. LCSO is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of Florida.” § 823.11(3), Fla. Stat. Adam Winton is a sworn law enforcement officer (“LEO”) working as a Deputy Sheriff for Respondent. Prior to joining Respondent, Deputy Winton was employed by the Florida Fish and Wildlife Conservation Commission (“Commission”). The Commission is the primary state agency responsible for derelict vessel enforcement identification and investigation. Deputy Winton received “ongoing training, as well as [law enforcement] academy training in derelict vessel investigations,” and he has been assigned to “disaster areas several times for the sole purpose of conducting derelict vessel identification.” Deputy Smith has been a LEO for 23 years. Deputy Smith has been with Respondent’s marine unit for nine years. In addition to his four-year 6 Generally, this type of pontoon boat operates with a motor on each hull. degree from Florida State University, he has completed 16 hours of derelict vessel investigation training. When a derelict vessel investigation is begun, the LEO starts by identifying the owner of the vessel and finding out the owner’s intentions for the vessel. The derelict vessel investigation then determines three things: the vessel is “wrecked;” “junked;” or “substantially dismantled.” A vessel is “wrecked when it does not have the ability to extract itself absent some mechanical assistance;” it might be sunk or grounded. A vessel is “junked” when it is substantially stripped of components, the vessel has been discarded, or it could also be sunk. A vessel is “substantially dismantled” if the vessel does not have the power to be steered, there are parts missing from the vessel, or the vessel’s integrity itself is compromised. 10 On August 16, 2020, Deputy Winton was working the marine patrol detail in the public waters of Lee County, Florida. While on that patrol, Deputy Winton observed Mr. Janikula’s pontoon houseboat in Matanzas Pass7 in Lee County, Florida. Deputy Winton observed the pontoon houseboat “listing [leaning] significantly” and the “right [starboard] hull had been compromised.” He observed the right hull did not “have an effective means of dewatering ... [and] it’s been in the state for quite some time.” Although the pontoon houseboat appeared to be floating, Deputy Winton testified the “starboard hull was in shallow water so it’s possible it was resting on the bottom.” The pontoon houseboat’s starboard hull was low in the water while the port (left) side was much higher out of the water, demonstrating the vessel’s listing. Deputy Winton also observed that the “interior cabin areas were breached and open to the elements.” Several “cabin windows and doors were 7 Matanzas Pass is within Estero Bay, Lee County, Florida. either open, broken, or missing,” allowing air, rain, or salt water into the pontoon houseboat. Further, Deputy Winton observed the pontoon houseboat did not “appear to have any sort of steering device.” He observed that although this pontoon houseboat was supposed to be equipped with two motors, the starboard motor was missing and the port motor had “damage to the cowling area [and] the bottom part was very corroded.” The port motor was “cracked in the back and everything [was] corroded on it.” Deputy Winton determined the port motor was an inoperable outboard engine. The “cables and different control mechanisms that run to where the [other] engine should be or where any sort of steering should be were broken, discarded, just hanging into the water.” As a result of all that he observed, Deputy Winton issued a Florida Uniform Boating Citation V2973718 to Mr. Janikula. In addition to including Mr. Janikula’s identification information, and the date, time, and location of the pontoon houseboat, the citation included the following description of the pontoon houseboat as “at-risk of becoming derelict.” Deputy Winton testified that this “at-risk” citation “is usually used as a sort of warning or sort of means to get somebody to fix a problem before it escalates to the point where they are issued a criminal charge for derelict vessel and a removal process is initiated.” In late November 2020, over three months after Deputy Winton issued the “at-risk” citation, Deputy Smith observed the pontoon houseboat partially submerged in Estero Bay in Lee County, Florida. Deputy Smith observed the pontoon houseboat’s pontoons under water, and the vessel was “hard aground” in three feet of water. 8 This citation contained Lee County Court Case Number 20-396456/W4 and was for an infraction which did not require a court appearance, but the payment of a fine within 30 days. This is an administrative proceeding. The undersigned was not advised of and has not relied on any action taken by the Lee County Court. Deputy Smith began an investigation of the pontoon houseboat, looking to determine if it met the criteria for a derelict vessel. Deputy Smith spoke with Mr. Janikula about the condition of his pontoon houseboat, and what his intentions were for it. In early December 2020, Deputy Smith observed the partially submerged pontoon houseboat, and again spoke with Mr. Janikula. On December 8, 2020, Deputy Smith again observed the partially submerged pontoon houseboat in Estero Bay. He saw the pontoon houseboat “was definitely in [a] wrecked condition ... sitting on the bottom. And it did not have the ability to remove itself.” The pontoon houseboat was sitting on a sandbar in two-to-three feet of water, and it was listing to the starboard side because the starboard pontoon was full of water. Deputy Smith also observed that the pontoon houseboat was missing the starboard motor and the port motor was inoperable. The cables, necessary to connect the two motors for steering, were “degraded, rotting, and laying in the water.” Deputy Smith observed the “throttle mechanism was rusted and degraded and, ... not in very good shape.” The pontoon houseboat could not move on its own. As a result of his observations, Deputy Smith located Mr. Janikula, and provided him a Florida Uniform Boating Citation, V542737. This citation included Mr. Janikula’s identification information, and the date, time, and the location of the pontoon houseboat. Additionally, the citation included the description that the pontoon houseboat was an “ABANDONED AND DERELICT VESSELS [sic].” Mr. Janikula acknowledged receipt of the derelict vessel citation and the information described in the first paragraph of the Preliminary Statement above. LCSO provided photographic evidence (Respondent’s Composite Exhibit G) of the condition of the pontoon houseboat between December 2020 and February 2021. A brief description of each photograph is provided: G-1: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the port hull, rub railing is broken, and port side is missing windows; G-2: The front of the pontoon houseboat is listing to the starboard side, with barnacles exposed on the front port bow; G-3: The pontoon houseboat registration number is visible, barnacles on the port side exposed pontoon above the water line are visible, rub railing is broken and coming apart, windows are broken out, and the LCSO’s Notice is visible; G-4: Starboard lower back side panel is shredded, hatch cover is missing, starboard motor is missing, throttle cables are unattached and hanging in the salt water; G-5: Starboard stern close-up of the damaged steering position, throttle cables are hanging down, starboard lower back side panel is shredded, stern back-door frame is rusted, and the back door open; G-6: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables laying in the salt water, and starboard lower back side panel is shredded; G-7: Navigational lights on starboard are visible, and bow appears to be a receptacle for a number of unrelated, discarded items, including a wheel and ice chest; G-8: Starboard lower back side panel is shredded, open hatches or windows are visible, port engine is out of the water, starboard motor is missing, steering cables are in the water, and pontoon houseboat is visibly listing to the starboard side; G-9: Full stern view of the inoperable port side outboard motor, starboard motor is missing, starboard side steering cables are laying in the salt water, stern back door frame is rusted and back door is open, and starboard lower back side panel is shredded; G-10: Port side pontoon is partially out of the water, rub rail is broken, windows are broken or missing, stern back door is open, port side outboard motor is out of the water, and starboard motor is missing; G-11: LCSO Notice posted on the pontoon houseboat on December 8, 2020; and G-12: Bow of the pontoon houseboat is listing to the starboard side, barnacles are exposed on the front port bow, and rub railing is broken. Mr. Janikula testified that the pontoon houseboat is “an ongoing project” of his, yet he failed to provide credible evidence of any repairs being made to it. He offered that someone was living on it and the person had a “hot shower last night.” Mr. Janikula testified that his pontoon houseboat was “currently in about 7 feet of water floating just fine. Right next to me. I can see it from here.” Mr. Janikula testified that the one outboard motor “got damaged,” his pontoon houseboat “doesn’t have any functioning engine” on it, and currently it is incapable of being moved on its own. Although he claimed the pontoon houseboat only had one motor when he purchased it, Mr. Janikula claimed the steering components were all present, and the vessel only needed one engine to steer. Lastly, Mr. Janikula testified that the pontoon houseboat was “technically ... a residential barge … it looks like a mobile home on pontoons.” LCSO’s photographs provide proof that this is not a barge as defined in section 327.02(3), Florida Statutes,9 but a pontoon houseboat, and it is in a wrecked condition. There can be no dispute that the pontoon houseboat was a “vessel” within the meaning of section 327.02(46). Based on the evidence (both testimony and photographic), the undersigned finds that at the time of the hearing, Mr. Janikula’s testimony regarding: substantial repairs having been made to the pontoon houseboat; 9 Section 327.02(3) provides: “Barge” means a vessel that does not have living quarters, is not propelled by its own power, and is designed to be pushed or pulled by another vessel. the description of the pontoon houseboat as floating in “7 feet of water”; the claim that the pontoon houseboat was sold with only one engine; and the claim that it is a residential barge, to be unpersuasive and self-serving. Further, the pontoon houseboat was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. The testimony and photographic evidence conclusively demonstrate that the pontoon houseboat was a junked and/or substantially dismantled vessel when it was observed by the deputies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County Sheriff’s Office issue a final order deeming the pontoon houseboat to be a “derelict vessel” within the meaning of section 823.11, and the Lee County Sheriff’s Office is authorized under section 376.15(3)(a) to relocate or remove it. DONE AND ENTERED this 30th day of April, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2021. COPIES FURNISHED: Gary Scot Janikula 132 Tropical Shore Way Fort Myers Beach, Florida 33931 Antonette D. Hornsby, Esquire Lee County Sheriff's Office 14750 Six Mile Cypress Parkway Fort Myers, Florida 33913
