08-000217 Normandy Shores, Llc vs. Department Of Environmental Protection Status: Closed Recommended Order on Monday, March 2, 2009.

Summary: Because of the proposed docks/slips were associated with an upland multi-family living complex, project was not exempt from an environmental resource permit requirements or entitled to a letter of consent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORMANDY SHORES, LLC, )

)

Petitioner, )

)

vs. ) Case No. 08-0217

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on December 3 and

4, 2008, in Miami, Florida.

APPEARANCES

For Petitioner: Daniel L. Abbott, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

Stephen J. Helfman, Esquire

John J. Quick, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.L.

2525 Ponce de Leon Boulevard, Suite 900

Coral Gables, Florida 33134-6045

For Respondent: Brynna J. Ross, Esquire

Kelly K. Samek, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether ten applications filed by Petitioner,

Normandy Shores, LLC, for an exemption from Environmental

Resource Permit (ERP) requirements to construct and install ten

docks to serve eighteen private boat slips and a letter of

consent to use sovereign submerged lands in Indian Creek, within

the Biscayne Bay Aquatic Preserve (Preserve), Miami Beach,

Florida, should be approved.

PRELIMINARY STATEMENT

This matter began on December 13, 2007, when Respondent,

Department of Environmental Protection (Department), issued a

Consolidated Notice of Denial Exemption and Letter of Consent to

Use Sovereign Submerged Lands (Notice of Intent) advising

Petitioner that its applications for an exemption under Florida

Administrative Code Rule 40E-4.051(3)(b) and a letter of consent

to use sovereign submerged lands to construct ten docks serving

eighteen private, single-family residences adjacent to Indian

Creek, Miami Beach, had been denied. 1

On January 3, 2008, Petitioner timely filed its Petition of

Normandy Shores, LLC, for Formal Administrative Hearing

(Petition) to contest the Department's preliminary determination

on the grounds the Department "mischaracterized Petitioner's

requests, incorrectly applied the true facts[,] and erroneously

interpreted Section 40E-4.051, F.A.C.; 18-21, F.A.C.; and 18-18,

F.A.C." The Petition was forwarded by the Department to the

Division of Administrative Hearings on January 11, 2008, with a

request that an administrative law judge be assigned to conduct

a hearing.

By Notice of Hearing dated January 25, 2008, the matter was

scheduled for final hearing on March 25 and 26, 2008, in Miami,

Florida. By Order dated February 27, 2008, Petitioner's

Unopposed Motion to Reset Administrative Hearing was granted,

and the matter was continued to July 1 and 2, 2008, at the same

location. By Order dated May 15, 2008, Respondent's Unopposed

Request to Re-Schedule Administrative Hearing was granted, and

the case was rescheduled to September 15 and 16, 2008. The

parties then filed a Joint Request to Reschedule Administrative

Hearing and the final hearing was rescheduled to December 3 and

4, 2008.

On September 10, 2008, the Department amended its Notice of

Intent by (1) making its decision applicable to Petitioner's

tenth application which had been inadvertently omitted from the

original Notice of Intent; (2) changing a rule citation in

Section III of the Notice of Intent to reflect 40E-4.051(3)(b),

rather than 40E-4.14(3)(b), as the rule upon which it relied;

and (3) adding as a reason for denying the letter of consent

that the proposed docks will result in unacceptable cumulative

impacts on the Preserve's natural systems in contravention of

Florida Administrative Code Rule 18-18.008.

Just prior to the final hearing, the Department's Motion to

Quash a subpoena ad testificandum served on one of its employees

was granted. At the final hearing, Petitioner presented the

testimony of Les G. Jones, its managing partner; Jason L. Jones,

its general project and development manager; Brie Cokos, a

marine scientist with Ocean Consulting and accepted as an

expert; and Kirk Jeffrey Lofgren, owner of Ocean Consulting.

Also, it offered Petitioner's Exhibits 1-4, 6-15, 18, 20, 22-24,

28, 29, 32, 33, 35, 38, 39, 41, and 44, which were received in

evidence. The Department presented the testimony of Marsha E.

Colbert, Biscayne Bay Aquatic Preserve Manager and accepted as

an expert; Jennifer K. Smith, Environmental Administrator with

the Southeast District Office and accepted as an expert; and

James W. Stoutamire, Program Administrator with the Division of

Water Resource Management and accepted as an expert. Also, it

offered Department's Exhibits 1-9, 13, 14, 18, and 19, which

were received in evidence.

The Transcript of the hearing (three volumes) was filed on

December 22, 2008. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to January 28, 2009. They were timely filed and have

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

A. Background

1. The Department is the agency responsible for

administering the provisions of Part IV, Chapter 373, Florida

Statutes, 2 regarding activities in surface waters of the State

that may or may not require an ERP. Florida Administrative Code

Rule 40E-4.051(3) authorizes the Department to approve

exemptions from ERP requirements for the construction of certain

docking facilities and boat ramps. In addition, the Department

has authority from the Board of Trustees of the Internal

Improvement Trust Fund to review and take final agency action on

Petitioner's requests for proprietary authorizations.

2. Petitioner is a developer of residential and commercial

properties. It owns waterfront land on the eastern side of

Normandy Isle at 25-135 North Shore Drive, Miami Beach, Florida.

Normandy Isle is surrounded by water, lies just west of Miami

Beach, and is accessed by the John F. Kennedy Causeway (also

known as 71st Street or State Road 934), which runs between the

Cities of Miami and Miami Beach. Normandy Waterway runs in an

east-west direction through the center of Normandy Isle, while

Indian Creek appears to generally run in a northwest-southeast

direction between Normandy Isle and Miami Beach. (Petitioner's

property is on the northern half of the island.) Both of these

waterbodies are in the northern portion of the Preserve, a Class

III and Outstanding Florida Water. The Preserve is a body of

water that stretches the length of Miami-Dade County,

essentially from Broward County to Monroe County.

3. The property adjoins Indian Creek to the east (the long

side of the parcel) and Normandy Waterway to the south (the

short side of the parcel) and is situated at the intersection of

those two waterways. Petitioner is currently developing the

property as Privata Townhomes (Privata), a luxury townhome

community.

4. Petitioner holds title to the property and a portion of

submerged lands of Indian Creek and Normandy Waterway. The

boundaries of the privately-owned submerged lands are accurately

depicted in Petitioner's Exhibit 12.

5. The Privata development comprises a total of forty-

three, single-family townhomes in seven buildings. Eighteen

townhomes are being constructed as waterfront homes along Indian

Creek (buildings 1, 2, and 3). Seven are being constructed as

waterfront homes along Normandy Waterway (building 4), while the

remaining eighteen townhomes (buildings 5, 6, and 7) are not

situated on waterfront property. Each waterfront parcel is

approximately eighteen linear feet wide and consists of both

upland and private submerged lands. The private submerged lands

facing Indian Creek run the entire length of the property and

extend approximately ten feet from the shoreline.

6. On October 1, 2007, Petitioner filed with the

Department ten applications for an exemption and letter of

consent to construct ten docks (docks 1 through 10) and eighteen

boat slips. The proposed docks will be located on the shoreline

extending into Indian Creek and the Preserve. Docks 1, 2, 4, 5,

6, 8, 9, and 10 will serve two slips each, or a total of sixteen

slips, while docks 3 and 7 will project outward from one single-

family parcel each and will be wholly-owned by that respective

single-family parcel owner. All of the docks will be spaced

less than sixty-five feet from one another. According to

Petitioner, the Department has already given Petitioner

authorization to construct three docks for the units in Building

4 facing Normandy Waterway to the south, and they are not in

issue here. The basis for that authorization, and the

distinction between those docks and the ones in dispute here,

are not of record.

7. Each of the docks will be built using four pilings with

forty square feet of decking. Therefore, each dock will be less

than five hundred square feet of surface area over the surface

waters. Associated with the docks are eighteen boat slips that

will include an additional pile installed approximately thirty

feet from the shoreline.

8. The slips and docks are exclusively for the private use

of, and will be owned by, the waterfront townhome owners. The

eighteen non-water townhome parcel owners will not have any

rights to submerged lands owned in fee simple by the purchasers

of the waterfront townhomes or the right to use any slip or

dock. This is confirmed by Article II, Section 1 of the

Declaration of Covenants, Restrictions and Easements for Privata

Town Homes at Miami Beach (Declaration of Covenants).

9. There have been docks and vessel moorings at the

project site for at least forty years. However, the docks do

not qualify for automatic grandfathering because a grandfather

structure application was never submitted to the Department, as

required by Florida Administrative Code Rule 18-21.0081.

10. After reviewing the applications, the Department

issued its Notice of Intent on December 13, 2007, as later

amended on September 13, 2008, denying all ten applications.

Citing Florida Administrative Code Rule 40E-4.051(3)(b), the

Department asserted that "the proposed docks are part of a

multi-family living complex and therefore must be a minimum of

65-ft. apart in order to qualify for the exemption." As to the

letter of consent, the Department asserted that based upon the

upland development at the site, the proposed docks constituted a

private residential multi-family dock or pier, as defined by

Florida Administrative Code Rule 18-21.003(44). In addition,

the Notice of Intent stated that the proposed docks fell within

the definition of a "commercial/industrial dock," as defined in

Florida Administrative Code Rule 18-18.004(7), and therefore

they required a lease (rather than a letter of consent) in

accordance with Florida Administrative Code Rule 18-

18.006(3)(c). Thus, the Department takes the position that an

ERP and a lease are required before the docks may be

constructed. The parties have raised no issues regarding

riparian rights.

11. By an amendment to its Notice of Intent issued on

September 13, 2008, the Department added as a reason for denying

the letter of consent that the docks will cause unacceptable

cumulative impacts on the Preserve within the meaning of Florida

Administrative Code Rule 18-18.008.

B. The Development

12. Each townhome occupies three stories of vertical,

independent space. No unit is situated over any other unit.

Each townhome has a separate entrance through its own front

door, and each has its own garage.

13. The townhomes in each building share a single wall.

Petitioner stated that this was done because if the units were

constructed with a narrow space between them, it would create

safety, fire, water moisture, and mold issues. However, there

is no cross-access between the units, and there is no

penetration (such as common plumbing, fire sprinklers, or

electrical conduits) through the load-bearing walls. Even so,

the units have various common structural elements such as

bearings, bearing walls, columns or walls necessary to support

the roof structure, and siding, finish, trim, exterior sheatings

(coverings), and other exterior materials.

14. There is a common area that runs the entire length of

shoreline between the buildings and the water. Within the

common area there is a seawall, sidewalk, pool, and grassy area

that are accessible by any member of the Privata Homeowners'

Association (Association).

15. According to the Declaration of Covenants, the

Association is responsible for painting the exteriors of the

buildings, including the walls, doors, and windows; maintaining

and repairing the docks and seawalls; and maintaining the common

areas. Members who own docks will pay a higher fee to the

Association than non-waterfront owners to offset the additional

costs associated with maintaining and repairing the docks.

16. Eighteen of the waterfront townhome parcels are

currently under purchase and sale agreements. The boat slips

were one of the main selling features of the waterfront

townhomes. In fact, the sales are contingent on the docks being

constructed, and Petitioner concedes that if the docks are not

built, the buyers will not be required to close on their

contracts. In its Privata marketing brochures, Petitioner

refers to "private boat docks" and owners having "a private boat

slip right in their own backyard" that is "[a]ble to accommodate

vessels up to 40 feet." It is fair to infer from the evidence

that the docks were used as a major inducement for customers to

purchase the waterfront parcels.

C. Exemption from an ERP

17. Florida Administrative Code Rule 40E-4.051(3)(b)4.

provides in relevant part that no permit shall be required for

(b) The construction of private docks of

. . . 500 square feet or less of surface

area over wetlands or other surface waters

for docks which are located in Outstanding

Florida Waters. . . . To qualify for this

exemption, any such structure:

* * *

4. Shall be the sole dock constructed

pursuant to this exemption as measured along

the shoreline for a minimum distance of 65

feet, unless the parcel of land or

individual lot as platted is less than 65

feet in length along the shoreline, in which

case there may be one exempt dock per parcel

or lot. For the purposes of this paragraph,

multi-family living complexes and other

types of complexes or facilities associated

with the proposed private dock shall be

treated as one parcel of property regardless

of the legal division of ownership or

control of the associated property . . . .

(Emphasis added)

18. Under the rule, an applicant will not qualify for an

exemption from permitting requirements if the upland structure

of a project site is a multi-family complex or facility. In

those cases, the owner of the project site is allowed to

construct one dock per sixty-five feet of shoreline (assuming

the size of the dock comports with the rule). The rule

specifically provides that the legal division of ownership or

control of the property is not relevant in making this

determination.

19. The underscored language in the rule is at the heart

of this dispute. The parties sharply disagree over whether the

Privata development consists of single-family units or whether

it is a multi-family living complex. Although the term "multi-

family living complexes and other types of complexes or

facilities" is not further defined by the rule, the Department

has consistently (with one exception cited below) interpreted

this provision to include buildings with so-called "attached

townhomes." Because the Privata townhomes share a wall with a

neighbor, as well as other common facilities, the Department

considers each building on the uplands to "house multiple

families." Put another way, multiple families will live in each

structure (building). On the other hand, if the units were

detached and free-standing, even by a few inches, the Department

agrees they would probably fall within the category of

"individual, detached, single-family homes."

20. The greater weight of evidence supports a finding that

the upland project is a multi-family living complex. This is

because the project has the attributes of a multi-family

complex, such as units sharing a common wall, multiple families

living in each building, and common areas accessible for each

member of the project. While Petitioner points out that each

townhome owner has fee simple title to his or her upland parcel

and the ten feet of adjoining submerged lands, the rule

specifically provides that the division of ownership and control

of the property is immaterial to the ultimate determination of

whether the property qualifies for an exemption. Given these

considerations, it is found that the project does not meet the

requirements for an exemption from ERP requirements under

Florida Administrative Code Rule 40E-4.051(3)(b)4. 3

D. Letter of Consent

21. A letter of consent is a form of authorization, but

does not by itself determine whether a project is approvable or

not. 4 In order to qualify for a letter of consent, the docks

would first have to be exempt from ERP requirements. As noted

in finding of fact 20, they are not. The "18 series rules [in

the Florida Administrative Code] are proprietary, essentially,

real estate rules" that apply to the use of state owned,

submerged lands. (Transcript, page 370). General guidance or

"overarching" submerged lands rules are found in Florida

Administrative Code Rule Chapter 18-21, while rules specific to

the Preserve are found in Florida Administrative Code Rule

Chapter 18-18. Both sets of rules apply here.

22. The dispute over the letter of consent centers on

whether the dock is a "private dock" or a "commercial/industrial

dock," as those terms are defined by the rules. The former does

not require a lease, while the latter does. See Fla. Admin.

Code R. 18-18.006 (3)(c)("A commercial/industrial dock on

sovereignty lands shall require a lease. Private docks to be

constructed and operated on sovereignty lands shall not require

a lease of those lands.")

23. A private dock is defined in Florida Administrative

Code Rule 18-18.004(18) as

a dock located on or over submerged lands,

which is used for private leisure purposes

for a single family dwelling unit and does

not produce income.

On the other hand, a commercial/industrial dock is defined in

subsection (7) of the same rule as

a dock which is located on or over submerged

lands and which is used to produce income,

or which serves as an inducement to renting,

purchasing, or using accompanying facilities

including without limitation multi-family

residential facilities. This term shall be

construed to include any dock not a private

dock.

24. Therefore, a dock may constitute a commercial/

industrial dock if it is associated with a multi-family

facility; if it is used as an inducement to rent, purchase, or

use accompanying facilities; or if the dock does not constitute

a private dock, which is used for a single-family upland

facility. The more persuasive evidence here shows that the

docks are associated with a multi-family facility; they are used

as an inducement to purchase the units; and they are not used

for a single-family upland facility. For any one of these

reasons, then, the docks must be categorized as commercial/

industrial docks.

25. Although the term "multi-family residential

facilities" is not specifically defined in Chapter 18-18,

another proprietary rule provides clarification of that term.

See Fla. Admin. Code R. 18-21.003(44). That rule defines the

term "private residential multi-family dock or pier" as

a dock or pier on a common riparian parcel

or area that is intended to be used for

private recreational or leisure purposes by

persons or groups of persons with real

property interest in a multi-family

residential dwelling such as a duplex, a

condominium, or attached single-family

residences or a residential development such

as a residential or mobile home subdivision.

(emphasis added)

As noted earlier, both Chapters 18-18 and 18-21 should be read

in conjunction with each other. When doing so, it is found that

the proposed docks are associated with "attached single-family

residences" (by virtue of sharing a common wall) and fall within

the definition of a commercial/industrial dock. Therefore, they

do not qualify for a letter of consent.

E. Cumulative Impacts

26. The waterbody in issue here is an Aquatic Preserve,

that is, "an exceptional area of submerged lands and its

associated waters set aside for being maintained essentially in

its natural or existing condition." § 258.37(1), Fla. Stat.

The Legislature intended for the submerged lands and associated

waters to be maintained "in an essentially natural condition so

that its biological and aesthetic values may endure for the

enjoyment of future generations." § 258.397(1), Fla. Stat.

See also Fla. Admin. Code R. 18-18.001(1). "Essentially natural

condition" is defined as "those conditions which support the

continued existence or encourage the restoration of the diverse

population of indigenous life forms and habitats to the extent

they existed prior to the significant development adjacent to

and within the preserve." Fla. Admin. Code R. 18-18.004(10).

27. In determining whether a letter of consent for new

docks and piers in the Preserve should be approved, Florida

Administrative Code Rule 18-18.008 requires that the Department

consider the cumulative impacts of those projects. The burden

rests on the applicant to provide reasonable assurances that the

project will not cause adverse cumulative impacts upon the

natural systems. In meeting this stringent test, the rule

recognizes that "while a particular alteration of the preserve

may constitute a minor change, the cumulative effect of numerous

such changes often results in major impairments to the resources

of the preserve." The rule goes on to identify five factors

that the Department must consider as a part of its cumulative

impact evaluation. In this case, the Department considered "the

number and extent of similar human actions within the preserve

which have previously affected or are likely to affect the

preserve"; the "similar activities within the preserve which are

currently under consideration by the Department"; and the

"[d]irect and indirect effects upon the preserve which may

reasonably be expected to result from the activity." See Fla.

Admin. Code R. 18-18.008(1), (2), and (3). The fact that the

Department discussed only the first three considerations, rather

than all five, in its Amended Notice of Intent does not render

its evaluation improper or incomplete, as suggested by

Petitioner. 5

28. If authorized, the project will allow eighteen boats

to dock at Privata along Indian Creek. Although the marketing

brochures indicate that boats up to forty feet in length will

use the slips, the evidence at hearing indicates that they will

be no more than twenty-five feet in length. The project adheres

to best management practices. Also, the number of docks was

limited by means of dock-sharing for eight of the ten docks.

The docks are designed so that boats will be moored parallel to

the shoreline rather than horizontal to the seawall; the docks

will be over six feet above mean high water; and the docks will

be constructed from materials designed to minimize environmental

impacts.

29. As noted above, the Preserve extends from Broward

County to Monroe County. Within the Preserve, there are

literally thousands of docks, including single docks,

multifamily docks, and commercial and industrial marinas.

Closer to the Privata project, there are docks, boat lifts,

cranes, davits (small cranes used for boats, anchors, or cargo),

and marinas located on both sides of Indian Creek. The

development along Indian Creek and Normandy Waterway includes

commercial, multifamily, and single-family docks. Due to heavy

boat traffic and extensive development around Indian Creek, it

is fair to say that the project is in a high turbidity area.

30. Besides the applications here, there are "several"

other applications now pending before the Department for docks,

piers, and slips within the Preserve. Two in-water

environmental resource surveys by the Department revealed that

resources such as paddle grass, Johnson's grass (a threatened

species), shoal grass, turtle grass, manatee grass, soft coral,

sponge, oysters, and sea urchins are present in the immediate

area. However, it is fair to infer that these marine resources

have adapted to the existing conditions and are able to

withstand the stress created by the heavy usage.

31. The evidence is sharply in dispute over whether the

project is reasonably expected to have direct or indirect

adverse impacts on the natural systems of the Preserve.

Petitioner contends that because a small number of docks and

slips are being proposed, best management practices will be used

in constructing the docks and slips, the area around Indian

Creek is already heavily developed, and the natural resources in

Indian Creek appear to have adapted to the stress created by the

other activities, the effect on the Preserve's natural systems

will be de minimus .

32. There are literally thousands of similar activities

and human actions that have already affected the Preserve and

are reasonably expected to continue in the future. Other

applications to engage in similar activities are now pending,

and it is reasonable to assume that others will be filed. The

natural resources in the immediate area are diverse, as

described by the Department witnesses, including at least one

threatened species. There will be direct and indirect impacts

that are reasonably expected to occur from the docks and mooring

areas such as increased shading and decreased water quality.

When the impacts of the Privata project are viewed in isolation,

they can be considered "a minor change." However, the

cumulative effect of this and other changes can result in

adverse impacts to the natural systems. Fla. Admin. Code R. 18-

18.008. The more credible evidence supports a finding that the

proposed activities will cause direct and indirect adverse

impacts on the Preserve's natural systems, so that the submerged

lands and associated waters will not be maintained "essentially

in [their] natural or existing condition." Fla. Admin. Code R.

18-18.001(1). Therefore, in this respect, the requirement of

the rule has not been met.

F. Other Projects in the Preserve

33. Petitioner points out that in June 2001, as later

modified in April 2002, another project in the Preserve known as

Aqua at Allison Island was given an exemption to construct

fifteen single-family docks, nine of which were intended for

private use and six to serve as shared structures for adjacent

property owners. See Petitioner's Exhibits 28 and 29. The

project site lies just south of Normandy Isle on Allison Island,

which adjoins Indian Creek and involved a similar upland

development of attached townhomes. While the Department

concedes that this action occurred, no other project of this

nature has ever been granted an exemption or letter of consent

to construct docks and use state-owned submerged lands within

the Preserve. The Department further explained that it "made an

error" when it granted an exemption for the project at Aqua at

Allison Island, and that with this single exception, it has

consistently denied all similar applications.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

35. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal. See ,

e.g. , Balino v. Department of Health & Rehabilitative Servs. ,

348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, Petitioner

has the burden of proving by a preponderance of the evidence

that the proposed activity is exempt from Department permitting

requirements and that it is entitled to a letter of consent.

36. The issue here is whether Petitioner qualifies for an

exemption from ERP requirements and a letter of consent. More

specifically, the question to be decided is whether the Privata

townhomes can be characterized as single-family units or as a

part of a multi-family complex. Apparently, this issue has

never been litigated since neither party, nor the undersigned,

has found any final order or appellate decision on the subject.

37. Florida Administrative Code Rule 40E-4.051(3)(b)4.

provides in relevant part that no permit shall be required for

the following type of docking facility:

(b) The installation or repair of private

docks . . . 500 square feet or less of

surface area over wetlands or other surface

waters for docks which are located in

Outstanding Florida Waters. . . . To qualify

for this exemption, any such structure:

* * *

4. Shall be the sole dock constructed

pursuant to this exemption as measured along

shoreline for a minimum distance of 65 feet,

unless the parcel of land or individual lot

as platted is less than 65 feet in length

along the shoreline, in which case there may

be one exempt dock allowed per parcel or lot.

For the purposes of this paragraph, multi-

family living complexes and other types of

complexes or facilities associated with the

proposed private dock shall be treated as one

parcel of property regardless of the legal

division of ownership or control of the

associated property. . . . .

See also § 403.813(2)(b), Fla. Stat.

38. For the reasons given in Findings of Fact 12-20, the

more persuasive evidence establishes that the private docks are

associated with upland "multi-family living complexes," and are

less than 65 feet apart; therefore, the project does not meet

the requirements of the rule and cannot qualify for an exemption

from ERP requirements. The fact that each unit owner has fee

simple title to his or her respective parcel and the adjacent

submerged lands is immaterial to this conclusion.

39. To qualify for a letter of consent, the docks must

first qualify for an exemption from ERP requirements. For the

reasons previously found, they are not exempt. Moreover, the

more persuasive evidence establishes that for three reasons, the

docks fall within the category of a commercial/industrial dock,

rather than a private dock, and therefore require a lease. See

Findings of Fact 21-25. Finally, Petitioner failed to show that

the project will not cause unacceptable cumulative impacts. See

Findings of Fact 26-32.

40. Because the docks do not qualify for an exemption from

ERP requirements, and they constitute commercial/industrial

docks, the ten applications must accordingly be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying Petitioner's ten applications for an

exemption from ERP requirements and a letter of consent to use

sovereign submerged lands to construct ten docks and associated

slips on Indian Creek in Miami Beach, Florida.

DONE AND ENTERED this 2nd day of March, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March, 2009.

ENDNOTES

1/ Petitioner filed ten applications. However, the Notice of

Intent only referred to nine applications. This omission was

later cured in an amendment to the original Notice of Intent

issued on September 13, 2008.

2/ All statutory citations are in the 2008 version of the

Florida Statutes.

3/ The fact that the City of Miami Beach has treated the

townhomes as single-family homes under its land development

regulations is immaterial to this finding. See Escambia County

vans Pac, et al. , 584 So. 2d 603, 605 (Fla. 1st DCA 1991)(a

state permit enforces a minimum standard to protect the state's

interests regardless of local decisions about the same project).

4/ A letter of consent is defined as a "nonpossessory interest

in sovereignty submerged lands created by an approval which

allows the applicant the right to erect specific structures or

conduct specific activities on said lands." Fla. Admin. Code R.

18-21.003(30).

5/ Paragraph (4) of the rule requires that the Department

evaluate "the extent to which the activity is consistent with

management plans for the preserve when developed." There is,

however, no established "management plan" for the Preserve and

therefore no such evaluation was required. Paragraph (5)

requires that the Department evaluate "the extent to which the

activity is permissible within the preserve in accordance with

comprehensive plans adopted by affected local governments." In

this case, the Department did not allege any inconsistency with

local government comprehensive plans.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Daniel L. Abbott, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.L.

200 East Broward Boulevard, Suite 1900

Fort Lauderdale, Florida 33301-1949

John J. Quick, Esquire

Weiss, Serota, Helfman, Pastoriza,

Cole & Boniske, P.L.

2525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134-6045

Brynna J. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.