11-001572 John H. Tory And John F. Thomas vs. Department Of Transportation And Board Of Trustees Of The Internal Improvement Trust Fund
 Status: Closed
Recommended Order on Tuesday, August 9, 2011.


View Dockets  
Summary: Application for public easement on submerged lands to replace existing bridge in Palm Beach County approved; no direct, secondary, or cumulative impacts on adjacent areas or riparian rights of challengers.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JOHN H . TORY AND JOHN F. )

16THOMAS, )

18)

19Petitioner s, )

22)

23vs. ) Case No. 1 1 - 1572

31)

32BOARD OF TRUSTEES OF THE )

38INTERNAL IMPROVEMENT TRUST )

42FUND AND DEPARTMENT OF )

47TRANSPORTATION, )

49)

50Respondent s . )

54______________________________ _ )

57RECOMMENDED ORDER

59Pursuant to notice, a final hearing in this matter was held

70before the Division of Administrative Hearings by its assigned

79Administrative Law Judge, D . R. Alexander, on June 20 - 2 2 , 2011,

93in West P alm Beach, Florida.

99APPEARANCES

100For Petitioner s : Jacob D. Varn , Esquire

108Fowler White Boggs, P.A.

112Post Office Box 11240

116Tallahassee, Florida 32302 - 1240

121For Respondent: Bruce R . Conroy, Esquire

128(DOT) Kathleen P. Toolan, Esquire

133Department of Transportation

136605 Suwannee Street

139Mail Station 58

142Tallahassee, Florida 32399 - 04 58

148For Respondent: Ryan S. Osborne, Esquire

154( Board) Department of Environmental Protection

1603900 Commonwealth Boulevard

163Mail Station 35

166Tallahassee, Florida 32399 - 30 00

172STATEMENT OF THE ISSUE

176The issue is whether to approve the Department of

185Transportation's (DOT's) application for a 50 - year Sovereign

194Submerged Lands Public Easement (easement) t o replace an

203existing bridge over a channel that connects Little Lake Wor th

214(Lake) and Lake Worth Lagoon (Lagoon) in Palm Beach County

224(County) , Florida.

226PRELIMINARY STATEMENT

228On November 9, 2010, the Board of Trustees of the Internal

239Improvement Trust Fund (Board) approved an application by DOT

248for a 50 - year easement to repla ce an existing bridge in the

262County. On November 29, 2010, Petitioners , who own property

271near the project, filed their Petition challenging that action.

280After their initial pleading was dismissed without prejudice,

288Petitioners filed their Amended Petitio n for Formal

296Administra tive Hearing (Amended Petition) on March 8, 2011. The

306case was referred by the Board to the Division of Administrative

317Hearings on March 23 , 2011. John A . Tory was one of the two

331original Petitioners in this cause. However, he pas sed away on

342April 2, 2011 . By Order dated May 31, 2011, his son, John H .

357Tory, a co - executor of his father's estate, and also the owner

370of a residence on the Lake , was substituted as a Petitioner and

382authorized to represent the estate .

388A Joint Prehearin g Stipulation was filed by the parties on

399June 16, 2011. At final hearing, Petitioners testified on their

409own behalf and presented the testimony of Captain Greg ory S.

420Albritton, a licensed boat captain who was accepted as an

430expert; and Robin Lewis, III, a biologist who was accepted as an

442expert. Also, they offered Petitioners' Exhibits 2, 3, 5 - 7, 10 -

45513, 15, 17 - 19, 25, 35, 37, 39, 42, 43A, and 43B, which were

470received in evidence. DOT presented the testimony of Ann

479Broadwell, Environmental Administrator in the District 4 Office

487and accepted as an expert; John Olson, Design Project Manager in

498the District 4 Office and accepted as an expert; Anita R. Bain,

510Bureau Chief of the Division of Environmental Resource

518Permitting for the South Florida Water Manageme nt District

527(District) and accepted as an expert; Kurtis Gregg, a District

537Environmental Analyst III and accepted as an expert; Captain

546David Schaeffer, a law enforcement area commander for the

555Florida Fish and Wildlife Conservation Commission (FFWCC) ;

562L ie utenan t Daniel McBride, a deputy sheriff in charge of the

575Palm Beach County Sheriff's Marine Unit ; Mary Duncan,

583Environmental Specialist III with the FFWCC and accepted as an

593expert; and Ken neth N. Smith, Biological Administrator II with

603the FFWCC and acce pted as an expert. Also, DOT offered DOT

615Exhibits 1 - 10 and 12, which were received in evidence. The

627Board presented the testimony of Timothy G. Rach, Administrator

636of the Office of Submerged Lands and Environmental Resource s and

647accepted as an expert ; Ku rtis Gregg; Anita R. Bain; Mary Duncan ;

659and Kenneth N. Smith . Also, it offered Board Exhibits 1 , 2, 10,

672and 13 - 15, which were received in evidence. The Board and DOT

685jointly offered Respondents' Joint Exhibits 1 - 1 4 and 17 - 19,

698which were received in evide nce . All parties submitted J oint

710Exhibits 1 - 3. Five members of the general public who reside

722near the b ridge presented testimony in support of the project :

734Chris t opher Karch, Raymond Biggs, Ronald Laug, Robert B. Martin,

745and Michele Merrell. These indi viduals were represented by

754James P. Curry, Esquire. Also, they offered Public Composite

763Exhibit 1, which was received in evidence. Michael T. Kopar ,

773director of safety and security at Lost Tree Village, presented

783testimony as a member of the public on b ehalf of Petitioners.

795Finally, official recognition was taken of the District's Final

804Order which granted DOT a Noticed Ge n eral Environmental Resource

815Permit (ERP) ; chapter 253, Florida Statutes ; and Florida

823Administrative Code Chapter 18 - 21.

829The Transc ript of the hearing (f ive volumes) was filed on

841July 7 , 2011. Proposed findings of fact and conclusions of law

852were filed by the parties on July 18, 2011, and have been

864considered in the preparation of this Recommended Order.

872FINDINGS OF FACT

875A. Backgrou nd

8781. On February 24, 2010, DOT filed with the District

888application s for an ERP and a 50 - year easement on approximately

9010.54 acres of submerged lands . The purpose of the se filings was

914to obtain regulatory and proprietary authority to replace the

923exi sting Little Lake Worth Bridge ( b ridge) due to structural

935deficiencies noted during inspections performed in 2006.

942Because of "serious deterioration of the concrete slab and

951reinforcing steel," the b ridge is under weight restrictions

960until construction is comp leted. See DOT Exhibit 5.

9692. An easement is required for road and bridge crossings

979and rights - of - way which are located on or over submerged lands.

993See Fla. Admin. Code R. 18 - 21.005(1)( e ) 2. Because DOT did not

1008have an easement for the existing bridge, it was required to

1019obtain one for the replacement work. See Fla. Admin. Code R.

103040E - 400.215(5). Under an operating agreement with the

1039Department of Environmental Protection (DEP), the District has

1047the responsibility of processing applications to use sub merged

1056lands for roadway projects. See Fla. Admin. Code R. 62 - 113.100.

10683 . First constructed in 1965, t he existing b ridge has

1080three spans, is 60 feet long, has two lanes (one in each

1092direction), and crosses a c hannel (or c anal ) that connects the

1105Lagoon to the south and the Lake to the north. The b ridge is

1119located in an unincorporated part of the County east of the City

1131of Palm Beach Gardens and north of the Village of North Palm

1143Beach . Highway A1A (also known as Jack Nicklaus Drive) is the

1155roadway that c rosses the b ridge.

11624 . Although the ERP application was challenged by

1171Petitioners, their Petition was dismissed as being legally

1179insufficient , and a Final Order approving the application was

1188issued by the District on June 9, 2010. See Joint Ex. 1 and

1201Re spondents' Joint Ex. 1 . No appeal of that action was taken.

1214Petitioners did not contest the application for an easement at

1224the District level.

12275 . The District staff initially determined that it could

1237process the application for an easement under the a uthority of

1248rule 18 - 21.0051(2). However, on July 28, 2010, the District

1259sent a memorandum to DEP's Office of Cabinet Affairs requesting

1269a determination on whether the project was one of heightened

1279public concern. See Respondents' Joint Ex. 2. After furt her

1289review by the DEP's Deputy Secretary of Land and Recreation, the

1300pr oject was determined to be one of heightened public concern

1311because of considerable public interest ; therefore, the decision

1319to issue an easement was made by the Board, rather than the

1331District. See Fla. Admin. Code R. 18 - 21.00 51(4) .

13426 . On November 9, 2010, the Governor and Cabinet, sitting

1353in their capacity as the Board , conducted a public hearing on

1364the application for an easement. Notice of the meeting was

1374provided to persons exp ressing an interest in the matter. Prior

1385to the meeting, the District and Board staff s submitted a

1396favorable recommendation on the application, together with

1403supporting b ackup information , including a report from the FFWCC

1413concerning impacts on manatees a nd a seagrass study conducted by

1424an outside consulting firm . See Respondents' Joint Ex. 3 , 6,

1435and 7 . A t the meeting , a District representative, Anita R.

1447Bain, described the purpose of the application , how the issues

1457raised by Petitioners were addressed , and the bases for the

1467staff's recommendation that the application be approved. See

1475Joint Ex. 3, pp. 96 - 101. The DOT Assistant Secretary for

1487Engineering and Operations also described the new bridge's

1495design and technical aspects. Id. at pp. 102 - 106. The Board

1507then heard oral comments from both proponents and opponents of

1517the project . Id. at pp. 106 - 154. Petitioners and their counsel

1530were among the speakers. No speaker was under oath or subject

1541to cross - examination. At the conclusion of the brief hear ing,

1553the Board voted 3 - 1 to approve the easement. The decision is

1566memorialized in a Notice of Board Action dated November 15,

15762010. See Respondents' Joint Ex. 4. Consistent with long -

1586standing practice, a written point of entry to contest , or

1596notice of r ight to appeal , th e decision was not given to any

1610person.

16117 . Throughout this proceeding, t he Board and DOT have

1622contend ed that the Board's decision on November 9, 2010, is

1633proprietary in nature and not subject to a chapter 120 hearing .

1645They assert that Petitioners' only administrative remedy , if

1653any, and now expired, is an appeal of the Board's decision to

1665the district court of appeal under section 120.68 . Petitioners

1675contend , however, that they are entitled to an administrative

1684hearing to contest the decision. That issue is the subject of a

1696pending motion to dismiss filed by the Board. However,

1705Petitioners have obtained the remedy they were seeking from day

1715one -- a chapter 120 hearing -- and they were afforded an

1727opportunity to litigate all issues ra ised in their Amended

1737Petition. All due process concerns have been satisfied and the

1747issue is now moot . 1

17538 . Except in one respect, Petitioners do not contest any

1764aspect of the easement or the project and its related impacts ;

1775they only object to DOT incre asing the navigational clearance of

1786the b ridge from 8. 5 feet to 12.0 feet above Mean High Water

1800(MHW). In short, the main objection driving this case is a fear

1812that a greater number of boats , mainly larger vessels, will

1822access the channel and Lake if the vertical clearance is raised ,

1833and disturb the peace and tranquility that has existed over the

1844last 30 years.

1847B. The Parties

18509 . Mr. Thomas' property , which he purchased in 1972, is

1861located on the east side of the channel that connects the Lake

1873and Lago on . The residence faces to the northwest and is around

1886200 feet north of the b ridge and a short distance south of the

1900entrance into the Lake. See Board Ex. 13. Mr. Thomas is not an

1913upland owner adjacent to the project site. He has a dock, a

192519 and 1/ 2 - foot boat, and a seawall built around 25 years ago .

1941Over the years, he has lost around two t o two and one - half feet

1957of sand on the side of the seawall facing the water due to

1970erosion caused by wave action . He also has a small, but slowly

1983increasing, ga p between his dock and the seawall. Mr. Thomas

1994does not fish, but he enjoys watching fish and wildlife in the

2006area, water - skiing with his family on the Lake, and swimming in

2019the channel. He noted that around 75 percent of boaters

2029traversing the channel o bserve reasonable speed limits, but the

2039other 25 percent operate their vessels at speeds up to 50 miles

2051per hour. Mr. Thomas fears an increase in the clearance will

2062result in more boat traffic ( attributable in part to Lake

2073residents who have a dock but no boat and would now purchase

2085one ), and larger boats for some Lake residents who now own

2097smaller vessels . He asserts that this will result in more wave

2109impact on his seawall , adverse ly affect the natural resources in

2120the area , and impact his right s of fi shing, swimming, water

2132skiing, and view in the channel and Lake.

214010 . Around 30 years ago, John A. Tory (now deceased)

2151purchased waterfront property in Lost Tree Village , a

2159residential development that surrounds part of the Lake . The

2169residence lies around one - half the way up the eastern shore of

2182the Lake. Thus, the property is not directly adjacent to the

2193project. The property has a dock and concrete seawall , which

2203has been rep aired periodically due to erosion. Mr. Tory did not

2215own a boat. His widow , w ho is not a party and jointly owned the

2230home with her late husband, still occupies the residence during

2240the winter months.

22431 1 . John H . Tory , the son of John A. Tory, stated that he

2259is involved in the case as a representative of his father's

2270estate, rath er than on his own behalf as a property owner on the

2284Lake . He owns waterfront property in Lost Tree Village located

2295on a small lagoon immediately north of the main body of water

2307comprising the Lake , or around 2,000 feet north of the bridge .

2320During the win ter months, Mr. Tory has observed manatees in the

2332small lagoon , but not the Lake . Mr. Tory acknowledged that the

2344new bridge will not affect ingress or egress to his late

2355father's home. However, he fears that if the bridge clearance

2365is raised to 12 feet, it will result in more boat traffic on the

2379Lake , larger boats, and the presence of live - aboards , who now

2391anchor in the Lagoon . He asserts that th ese conditions will

2403d istu r b the peace and tranquility on the Lake, cause the fish

2417and wildlife to leave, and i mpact the safety of his children and

2430grandchildren who occasionally swim in the Lake.

24371 2 . The DOT is a state agency having the responsibility to

2450build roads and bridges throughout the State. It applied for

2460the easement that is the subject of this case. There is no

2472dispute that DOT has sufficient upland interest necessary to

2481obtain an easement.

24841 3 . The Board is vested with title to all sovereignty

2496submerged lands, including the submerged real property in the

2505channel.

2506C . The Project

25101 4 . The new bridge will be 90 feet in length with a

2524vertical clearance of 12 feet above MHW. It will be constructed

2535in the footprint of the existing structure. The replacement

2544bridge will continue to be two lanes and has a design service

2556life of 75 years. The new bridge w ill expand the vehicle lane

2569widths from 10 to 12 feet, expand the road shoulder from six to

2582eight feet, and expand the sidewalks from four to six and one -

2595half feet in width. Both the horizontal and vertical

2604navigational clearance s will be increased. It i s undisputed

2614that by increasing the horizontal clearance, navigational safety

2622will be improved. Also, by increasing the vertical clearance, a

2632boater's focus will be redirected from the low clearance to the

2643water, the proximity of the pilings, approaching vessels, and

2652other potential hazards.

26551 5 . In conformance with D OT design requirements, the

2666vertical navigational clearance will be raised from 8.5 feet to

267612 feet above MHW. The D OT 's Plans Preparation Manual and

2688Structures Design Guidelines both provi de that for concrete

2697superstructures over highly corrosive waters due to chloride

2705content, the minimum vertical clearance should be 12 feet above

2715MHW. See DOT Ex . 7 and 8. Th is amount of clearance is

2729necessary to ensure bridge longevity in aggressive sal twater

2738marine environments. Therefore, a 12 - foot clearance is

2747appropriate . Also, the new height is calculated to give the

2758bridge a 75 - year lifespan; in contrast, a bridge with an eight -

2772foot clearance would have a shorter lifespan. Except for

2781bridge s wit h unique limiting conditions, all bridges in the

2792County are now being constructed at the 12 - foot height.

28031 6 . All work will be performed without the necessity for

2815large cranes or barges to pile - drive from the water.

2826Essentially all work will be done fro m the land adjacent to the

2839b ridge. However, small vessels will be needed to put

2849construction workers on the water while the crane is being

2859operated from land.

28621 7 . A $3.3 million design - build contract was executed by

2875DOT and The Murphy Construction Compa ny in May 2009, and the

2887contractor is awaiting the outcome of this proceeding before

2896commencing work . Given the size and scope of work, t he project

2909is considered a "minor" bridge project.

291518. DOT is required to implement Standard Manatee

2923Conditions for In - Water Work during construction of the b ridge.

2935Pursuant to these conditions, DOT is required to train personnel

2945who will be at the job site to identify manatees and log when

2958they are seen in the area. Signage will be placed at the bridge

2971construction site and on any equipment in the water warning

2981about hazards to manatees. If a manatee is found in the

2992vicinity, work must cease to allow the manatee to safely

3002traverse the construction zone and not be trapped in the

3012turbidity curtains.

301419. Best manageme nt practices for environmental impacts

3022will be required during construction. No dredging or excavation

3031of the channel is planned, and blasting will not be allowed

3042during construction. Although there are 0.12 acres of mangroves

3051within the boundaries of th e submerged lands, the project was

3062redesigned to completely avoid direct mangrove impacts. Except

3070for one four - square - meter patch of seagrass (Turtle grass)

3082located a little more than 200 feet southeast of the project

3093site, no seagrasses are located in or adjacent to the project

3104site.

310520. The new 12 - foot height will accommodate a 100 - year

3118storm surge event at this location.

3124D . The Lake and Lagoon

31302 1 . The Lagoon stretches some 20 miles from the b ridge

3143southward to a point just north of the City of Bo ynton Beach.

3156It averages around one - half mile in width. The Intracoastal

3167Waterway (ICW) generally runs in a north - south direction through

3178the middle of the Lagoon before turning to the northwest into

3189Lake Worth Creek, around a mile south of the b ridge.

320022 . The Lagoon is divided into three segments: north,

3210central, and south. The north segment is more commonly known as

3221the North Lake Worth Lagoon . The Lake Worth Inlet , located

3232around five miles south of the bridge, provides an outlet from

3243the North L ake Worth Lagoon to the deeper waters in the Atlantic

3256Ocean. The Riviera Beach Power Plant is located on the western

3267side of the Lagoon just south of the Lake Worth Inlet and is a

3281warm - water refuge area for manatees during the winter months.

3292Peanut Islan d , a County - owned recreational site, lies in the ICW

3305just north of the power plant. The northern boundary of the

3316John D. MacArthur Beach State Park (State Park) is less than a

3328mile south of the project area on the eastern side of the

3340Lagoon.

33412 3 . There a re extensive seagrass beds in the Lagoon mainly

3354along the shoreline around the State Park and Peanut Island.

3364One survey conducted in 1990 indicated there are 2,100 acres of

3376seagrass in the Lagoon. See Petitioners' Ex . 15. The same

3387study concluded that a round 69 percent of all seagrasses in the

3399County are located in the northern segment of the Lagoon. Id.

34102 4 . The Lake is designated as a Class III water body , is

3424around 50 acres in size, and measur es no more than a half - mile

3439in length (running north to south) and a few hundred feet wide.

3451Although the Lake is open to the public, boat access is only

3463through the c hannel since there are no boat ramps on the Lake .

3477Several residential developments, including Lost Tree Village

3484and Hidden Key , are located nort h of the b ridge and surround the

3498Lake. The Lake has no natural shorelines since seawalls have

3508been constructed around the entire water body. A erial

3517photographs reflect that m any of the residences fac ing the Lake

3529or channel have docks , but not every dock owner has a boat.

35412 5 . Navigation under the b ridge is somewhat tricky because

3553the water current goes in one direction while the b ridge points

3565in another direction. Also, due to the accumulation of sand

3575just south of the b ridge , the channel is shallow whi ch requires

3588that an operator heading north "make sort of an S - turn to take

3602the deepest water possible to go through." By widening the

3612b ridge pilings and raising the navigation al clearance, as DOT

3623proposes to do, the tidal flow will slow down and all boats will

3636be able to enter and depart the Lake in a safer manner .

364926. Currently, e xcept for one cigarette - style boat in the

366130 - foot range, the boats on the Lake are small boats (under

367430 feet in length) with outboard motors. T - top boats (those

3686with a stat ionery roof) with no radar or outriggers on top could

"3699possibly" get under the b ridge , but those with sonar cannot .

3711Also, "most" boats with large outboards that have a draft of

3722around 18 inches can now access the Lake. At high tide, smaller

3734vessels with in - board motors that draw three and one - half to

3748four feet could "probably" get under the b ridge , but once inside

3760the Lake, they would be "trapped" at low tide.

376927. If the navigational clearance is raised, Petitioners'

3777boating expert , Captain Albritton, op ined that the greatest

3786impact will not come from the general public, but from residents

3797o n the Lake who have no boat but may now buy one, or residents

3812who will buy larger vessels . However, he could not quantify

3823this number. He further opined that boaters who do not live on

3835the Lake would have no reason to go there because it has no

3848attraction. He also opined that larger boats operated by non -

3859residents in the Lagoon will continue to either exit the Lagoon

3870to deeper water s through the Lake Worth Inlet or c ontinue on the

3884ICW, which turns off to the northwest around a mile south of the

3897b ridge.

389928. If several boats operate simultaneously on the Lake,

3908significant wave action is created because the Lake is

3917surrounded by a seawall with no beach or shoreline to absorb or

3929reduce the wave impact . Due to the wave action and the Lake's

3942small size, it is highly unlikely that more than four boats

3953c ould ever use the Lake at the same time. Even then, Mr. Thomas

3967d escribed conditions as "pretty crowded" with "choppy" wa ter and

3978not a pleasant experience for boaters. Likewise, Captain

3986Albritton agreed that with only a few vessels on the Lake, the

3998water become s " very rough," and "safety" considerations prevent

4007or discourage other vessels from accessing or using the Lake.

4017Captain Albritton also agreed that it would only be speculation

4027to assume that there would be more boating in the area after the

4040project is completed .

404429. Mainly during the winter months, a large number of

4054vessels anchor in the North Lake Worth Lagoon . At least

406595 percent , if not more, are sailboats with a fixed keel that

4077prevents them from navigating beneath the b ridge even with a

408812 - foot clearance. Also, the water depth in the Lake is greater

4101than the North Lake Worth Lagoon , and boaters prefer mooring in

4112shallower waters. A dmittedly, a few houseboats powered by

4121outboard motors occasionally frequent North Lake Worth Lagoon ,

4129and if they tilt their motors up, it might be possible for them

4142to navigate under the b ridge with a 12 - foot clearance . Ho wever,

4157houseboats typically have a flybridge ( an upper deck where the

4168ship is steered and the captain stands) above the roof of the

4180house and would not be able to navigate under the bridge even

4192with a heightened clearance. There is no evidence that a

4202hous eboat or other live - aboard has ever entered the Lake.

421430 . The Lake is included in the John D. MacArthur Beach

4226State Park Greenline Overlay (Greenline Overlay) , which is part

4235of the Future Land Use Element (FLUE) of the County's Plan. The

4247resources within the Lake are part of the Greenline Overlay , the

4258purpose of which is to protect conservation areas, prevent

4267degradation of water quality, control exotic species, and

4275protect critical habitat for manatees and threatened and

4283endangered species. See Petition ers' Ex. 10, FLUE Obj. 5.3, p.

429494.

4295E. Petitioners' Objections

429831 . Only direct adverse impacts within the project site

4308must be considered by the Board before approving the easement.

4318This is because potential secondary and cumulative impacts

4326associated wi th the project were already considered by the

4336District in the regulatory process, when the ERP was issued.

4346Direct impacts are those that may occur within 200 feet north

4357and south of the centerline of the bridge. A 400 - foot area is

4371appropriate as the proj ect is considered "minor" and simply

4381replaces an existing structure. B ecause of public interest in

4391the project, however, the Board (with advice from the District ,

4401DOT, other agencies, and outside consultants ) a gain considered

4411the secondary, cumulative, an d even speculative impacts of the

4421project. Having determined that there were no adverse impacts

4430of any nature , the Board concluded that the easement should be

4441granted.

444232. Petitioners agree that neither the construction work

4450nor the b ridge itself will ca use any direct impacts within the

4463project site. However, they contend that the secondary impacts

4472of the project will be "significant." Secondary impacts are

4481those that occur outside the footprint of the project, but which

4492are closely linked and causally related to the activity.

4501Petitioners did not present any credible evidence that

4509cumulative adverse impacts are associated with the project.

451733. Petitioners argue the project will cause secondary

4525impacts on seagrasses, manatees, seawalls (through erosion

4532caused by wave - action ), and recreation al uses such as swimming,

4545boating, nature viewing, canoeing, and fishing . They further

4554argue that DOT has failed to take any steps to eliminate or

4566reduce these impacts , which could be accomplished by keeping the

4576navig ational clearance at the same height . They also contend

4587that the project will unreasonably infringe upon their riparian

4596rights , and that the project is inconsistent with the local

4606comprehensive plan and State Lands Management Plan . 2 Finally,

4616they assert that the project is contrary to the public interest.

4627These allegations implicate the following provisions in rule 18 -

463721.004: (1)(a) and (b);(2)(a), (b), (d), and (i); and (3)(a)

4648and (c). 3 The parties have stipulated that all other

4658requirements for an ea sement have been satisfied. The

4667allegations are based primarily, if not wholly, on the premise

4677that a higher vertical clearance on the b ridge will allow larger

4689vessels to access the Lake and channel and increase boat traffic

4700in the area.

4703a. Impact on S eagrasses

470834 . Petitioners first contend that seagrasses will be

4717secondarily impacted by the project. Seagrasses are completely

4725submerged grass - like plants that occur in shallow ( i.e. , no more

4738than six feet of water depth) marine and estuarine waters due to

4750light penetration . There are seven species in the State; the

4761rarest species is Johnson's seagrass (Halophilia johnsonii), a

4769threatened species found mainly around inlets that begin south

4778of the Sebasti a n Inlet in Brevard County and continu e to the

4792nort hern p arts of Biscayne Bay in Dade County . Unlike some

4805seagrass species , Johnson's seagrass actually increases in areas

4813with a higher wave energy climate.

481935. Although there may be some isolated patches of

4828seagrasses just beyond the 200 - foot area southea st of the

4840bridge, t he first significant coverage of seagrass occurs along

4850the shallow, eastern shoreline of the North Lake Worth Lagoon ,

4860in and around the State Park and Munyon Island , an island just

4872southeast of the State Park ; both are a round one - half mi le south

4887of the proposed activity. Some of these species are Johnson's

4897seagrass. Petitioners' expert agreed that during his site

4905inspection, he found no seagrasses until he approached the State

4915Park. O ther significant coverage is located in and around

4925P eanut Island, which lies around five miles south of the b ridge.

4938There are no seagrasses in the Lake.

49453 6 . The seagrass beds along the shoreline in the North

4957Lake Worth Lagoon are "relatively stable" and wax or wane

4967depending mainly on the water - quality co nditions in the system .

4980During heavy rainfall events, the water in adjacent canals is

4990released and can adversely affect the water quality. Although

4999there are no canals discharging waters into North Lake Worth

5009Lagoon north of where the ICW deviates into L ake Worth Creek,

5021there are numerous impervious areas near the b ridge ( associated

5032with other developments) that discharge stormwater into the

5040Lagoon south of the project site. Also, there is a canal that

5052delivers water from upland regions into the Lagoon j ust south of

5064Munyon Island.

506637. Besides heavy rain, boats operating at higher speeds

5075can c reate suspended sediments and cloudy water conditions that

5085adversely affect the seagrass. However, these impacts have

5093occurred for years, they will continue even if the bridge

5103clearance is not raised, and they are wholly dependent on one's

5114operation of the watercraft. There is no competent evidence,

5123and only speculation , that raising the navigational clearance on

5132the b ridge will lead to a greater number of boats i n the Lagoon

5147and/ or cause boats to operate recklessly in or near the seagrass

5159beds . In fact, t he evidence shows that a majority of the boat

5173traffic operates in the ICW and deeper waters of the Lagoon, and

5185not in the shallow waters along the shoreline. DO T has given

5197reasonable assurance that the project will not cause secondary

5206adverse impact s to seagrasses in the Lagoon.

5214b. Impact on Manatees

52183 8 . Petitioners also contend that there will be secondary

5229adverse impacts on manatees , again due to increased bo at traffic

5240in the area . They point out that the overall mortality rate for

5253manatees in the County has increased nearly every year since

52631974; that 39 percent of all mortalities in the County are

5274attributed to watercraft strikes; that the North Lake Worth

5283Lagoon provides important habitat (seagrasses) for manatees; and

5291that manatee abundance and watercraft - related strikes are

5300highest in th at area.

53053 9 . Based upon an analysis conducted by the FFWCC, t he

5318more persuasive evidence on this issue supports a findi ng that

5329the bridge, with a heightened clearance, will not significantly

5338increase risks to manatees. See Respondents' Joint Ex. 6. A

5348similar conclusion was reached by the United States Fish and

5358Wildlife Service. See Respondents' Joint Ex. 17. Even if

5367la rger boats can access the channel, the probability of a boat

5379striking a manatee w ill not change.

538640. It is true that manatees sometimes travel into the

5396Lake during the winter months. H owever, no reported water craft -

5408related strikes have occurred, and on ly one manatee carcass (a

5419dependent calf) has ever been found in the Lake, and that was a

5432perinatal death unrelated to boat activity. Aerial surveys of

5441manatees reflect that the greatest amount of manatee presence

5450and activity is far from the project site . See Respondents'

5461Joint Ex. 12. This is also confirmed by the fact that t he

5474primary manatee gathering area in the County is around the

5484Riviera Beach Power Plant, which lies five miles south of the

5495bridge. Even the County's Manatee Protection Plan has

5503d esignated the northern area of the Lagoon as a preferred area

5515for marinas and docks because of the lower incidence of manatees

5526in that area. Finally, t he evidence shows that the majority of

5538manatees traveling north through the Lagoon turn into Lake Worth

5548Creek one mile south of the bridge and continue northward in the

5560ICW, rather than into the channel or Lake. Reasonable

5569assurances have been given that the project will not result in

5580significant secondary adverse impacts on manatees.

5586c. Erosion of Seawall s

55914 1 . Mr. Thomas point s out that wave action from existing

5604boat traffic ha s been contributing to erosion of his seawall for

5616many years. He argue s that if the bridge height is raised,

5628there will be increased boat traffic, which will cause further

5638damage t o existing seawalls on the Lake and channel .

564942 . Wave action is caused not only by the operation of

5661boats entering or departing the Lake , but also by w ater skiers

5673and j et s kiers on the Lake itself . These activities will

5686continue, even if the clearance is not raised. This is because

5697n on - resident skiers can easily access the Lake with the existing

57108.5 - foot clearance , while resident s on the Lake have access from

5723their docks. The only real limitation on these activities is

5733the Lake's size and unsafe condi tions that occur when more than

5745one or two boat s are present, and not the bridge's vertical

5757clearance.

57584 3 . Whether boaters will observe no - wake speeds or operate

5771at a higher speed in the channel and Lake is open to debate. As

5785noted earlier, there is no competent evidence , but only

5794speculation, to support Petitioners' claim that the behavior of

5803boaters will change , or that boats w ill be operated more

5814recklessly, simply because the clearance is raised. The

5822evidence supports a finding that the project will not have a

5833significant impact o n seawalls due to increased traffic or other

5844related usage in the Lake and channel .

5852d. Riparian Rights

58554 4 . The riparian boundary lines of Mr. Thomas and Mr. Tory

5868are depicted on Board Exhibits 13 and 14, respectively , an d are

5880n ot in dispute. Petitioners contend that increased boat traffic

5890will unreasonably infringe upon their riparian rights of view ,

5899fishing, boating, canoeing, and swimming. They also assert that

5908with a higher clearance, the Lake will "be very popular f or

5920live - aboards, especially in the winter months, because of its

5931secluded nature and easy access to amenities," and this will

5941also impact the ir riparian rights. They do not contend that the

5953project will affect their right of ingress or egress or their

5964rig ht to wharf out (build a dock) from their upland property.

597645. Rule 18 - 21.004(3)(c) provides that "[a]ll structures

5985and other activities must be designed and conducted in a manner

5996that will not unreasonably restrict or infringe upon the

6005riparian rights of adjacent upland riparian owners." (Emphasis

6013added) . Traditional r iparian rights are generally considered to

6023be ingress, egress, the ability to wharf out, and view. See

6034§ 253.141(1), Fla. Stat. ; Fla. Admin. Code R. 18 - 21.004(3)(a).

6045In determining whether this rule is sat isfied, the Board only

6056considers adjacent upland riparian owners who are directly

6064adjacent to and abut the bridge and whether the proposed

6074activities w ill block their ingress/egress or unreasonably

6082restrict their rights in any other way. In this case, adjacent

6093upland owners are not affected. Although neither Petitioner is

6102an "adjacent upland riparian owner" within the meaning of the

6112rule, because of the interest shown by some nearby residents,

6122t he Board also considered potential im pacts on property owners

6133in the channel and Lake, including Petitioners, to determine

6142whether their riparian rights were unreasonably affected. In

6150doing so, it followed the long - established principle that

6160riparian rights are not exclusionary rights, and t he public has

6171a concurrent right with a riparian owner to fish and swim in

6183waters owned by the State, and a right to navigate . See , e.g. ,

6196The Ferry Pass Inspectors' and Shippers' Ass'n v. Whites River

6206Inspectors' and Shippers' Ass'n , 57 Fla. 399 , 48 So. 6 43 , 645

6218(Fla. 1909).

622046. The more persuasive evidence shows that the activities

6229are designed and conducted in a manner that will not

6239unreasonably restrict or infringe upon the riparian rights of

6248adjacent upland owners or other nearby property owners on the

6258Lake and channel . Petitioners failed to establish that the

6268proposed activity (or the use of the waters by members of the

6280public) will prevent them from accessing navigable waters from

6289their property or wharfing out . Likewise, they presented

6298insuffici ent evidence to establish that the activities will

6307adversely affect their view. A similar contention that the ir

"6317recreational" rights of fishing, boating, swimming , and nature

6325viewing will be secondarily impacted has been rejected. See

6334Fla. Admin. Code R . 18 - 21.004(2)(a).

63424 7 . A concern that once the project is completed, live -

6355aboards ( i.e. , vessels used solely as a residence and not for

6367navigation) will move from the Lagoon to the Lake and

6377unreasonably infringe upon Petitioners' riparian rights is

6384with out merit. As noted above, v irtually all of the live -

6397aboards in the North Lake Worth Lagoon are sailboats , which

6407cannot access the Lake even if the clearance is raised.

6417Finally, t he County has enacted an ordinance that prohibits

6427live - aboards in the Lake and Loxahatchee River. See

6437Respondents' Joint Ex. 18. L aw enforcement agencies are charged

6447with the responsibility of enforcing that ordinance.

6454e . Comprehensive Plan and State Plan

64614 8 . Although there is no specific requirement in chapter

647218 - 21 to do so , p ursuant to section 339.135 the proposed "work

6486program" was reviewed for consistency with the County's Plan by

6496the Department of Community Affairs (DCA) , now designated as a

6506division in the new Department of Economic Opportunity . Unless

6516a project is i nconsistent with a plan requirement, the DCA does

6528not provide written comments. In other words, no response is an

6539indication that the project is consistent with all local plan

6549requirements . After reviewing the project , the DCA did not

6559respond. Therefore , the project was deemed to be consistent

6568with the County Plan. This information was submitted to the

6578Board prior to its decision. See Joint Ex. 2.

65874 9 . R ule 18 - 21.004(1)(i) requires that the State Plan

"6600shall b e considered and utilized in developing rec ommendations

6610for all activities on submerged lands. " Petitioners contend

6618that the new bridge will violate the following policies in the

6629State Plan : th at submerged grasses be protected; and that

6640natural conditions be maintained to allow the propagation of

6649fish and wildlife . However, the protection of submerg ed grasses

6660and natural resources w as considered by the District before

6670submitting a recommendation to the Board . To the extent this

6681rule may apply, if at all, to the pending application, its

6692requireme nts have been met.

669750 . Petitioners also contend that the project is

6706inconsistent with FLUE objective 5.3, which requires the County

6715to maintain t he Greenline Overlay in order to protect natural

6726resources in the area. They argue that the proposed activity is

6737inconsistent with the requirement that the greenline buffer be

6746protected from potentially incompatible future land uses;

6753critical habitat for wildlife, including threatened and

6760endangered species; and manatees. See Petitioners' Ex. 10, FLUE

6769obj. 5.3, p. 94.

67735 1 . Petitioners cite no authority for their contention

6783that consistency with local comprehensive plans is a requirement

6792for approving an application to use submerged lands. Assuming

6801arguendo that it is, the easement is not inconsistent with the

6812above objective , as the replacement of an existing structure is

6822not an incompatible future land use, and it will not impact

6833seagrasses or manatees.

6836f. Public Interest

68395 2 . Rule 18 - 21.004(1)(a) provides that "all activities on

6851sovereignty lands must not be contrary to the public interest."

6861Rule 18 - 2 1.003(51) defines "public interest" as "demonstrable

6871environmental, social, and economic benefits which would accrue

6879to the public at large as a result of a proposed action, and

6892which would clearly exceed all de monstrable environmental,

6900social , and economic costs of the proposed action." The same

6910rule requires that in determining public interest, the Board

"6919shall consider the ultimate project and purpose to be served by

6930said use . . . of lands or materials." Al though Petitioners

6942agree that the project is for a public purpose, they contend

6953that DOT failed t o demonstrate that th e project creates a net

6966public benefit, and therefore it does not meet the public

6976interest test. However, the so - called "net public benef it"

6987standard relied upon by Petitioners appears to be d erived from

6998rule 18 - 2 1 .004( 4 ) (b) 2.e. , which applies to the use of submerged

7015lands for p rivate residential multi - family docks , and not public

7027easements.

70285 3 . In any event, t he project has a number of p ositive

7043attributes that militate against finding that it is contrary to

7053the public interest. Until the project is completed, t he b ridge

7065is structurally deficient and it presents a serious safety

7074concern to the public. Although the bridge height will be

7084i ncreased, with the slopes being provided over a greater

7094distance, the view of oncoming traffic across the bridge is

7104better and safety will be improved for motorists . Increasing

7114the bridge height will also improve navigation for boaters

7123entering or departi ng the Lake . DOT is using a preferential

7135engineering design , which will increase the lifespan of the

7144bridge to 75 years . The new design will provide for a slower

7157velocity of water flow through the channel, which means an

7167easier and safer route for boater s traversing the channel.

71775 4 . Currently, almost all vessels (except a few small ones

7189transported on trailers) operated by the Palm Beach County

7198Sheriff 's Office and the FFWCC are unable to access the Lake in

7211the event of an emergency due to emergency li ghts, antenna, and

7223sonar equipment mounted on the roof s of the ir vessels . Th is

7237pre v ents them from responding to incidents that may occur on the

7250Lake, including serious crimes, accidents, fires on board

7258vessels, manatee rescues, and other related enforceme nt matters.

7267Representatives of b oth agencies indicated that with a 12 - foot

7279clearance, their vessels will be able to access the Lake.

72895 5 . Petitioners argue, however, that in the event of an

7301emergency they would call a security officer for Lost Tree

7311Villag e. But p ublic comment by a securit y officer for that

7324development indicated that security personnel only patrol three

7332to five hours per day, they are not sworn law enforcement

7343officers, they do not have arrest authority, and they could not

7354undertake rescue s if more than two persons were injured.

73645 6 . Collectively, these considerations support a finding

7373that the proposed activities on sovereignty submerged lands are

7382not contrary to the public interest.

7388g. Mitigation and Avoidance

73925 7 . Rule 18 - 21.004(2)(b) provides in part that if the

7405activities will result in "significant adverse impacts to

7413sovereignty lands and associated resources ," the application

7420should not be approved "unless there is no reasonable

7429alternative and adequate mitigation is proposed." Se e also Fla.

7439Admin. Code R. 18 - 21.004(7). Petitioners argue that in order to

7451avoid significant adverse impacts, a reasonable alternative is

7459to add a nonstructural horizontal member to the bridge in order

7470to retain the existing cl earance of 8.5 feet.

74795 8 . There are no significant direct, secondary, or

7489cumulative adverse impacts to the submerged lands or natural

7498resources associated with the bridge or its construction .

7507Therefore, the Board is not required to consider design

7516modifications. Moreover, n o bri dges have ever been constructed

7526in th e manner suggested by Petitioners , and no design criteria

7537currently exist for the implementation of such a non structural

7547element on a bridge. A permanent member would cause the same

7558concerns as having a lower bridge be cause it would be

7569susceptible to the aggressive water environment that could

7577impact the life of the Bridge. If a non - permanent member were

7590attached to the Bridge, it would require periodic maintenance

7599and evaluation.

76015 9 . Either type of control would pr esent engineering

7612liability concerns, as well as a hazard to approaching boaters

7622who might not be able to discern that the clearance is 8.5 feet

7635when the bridge itself is 12.0 feet above MHW. DOT does not

7647have any design guidelines, standards, or specific ations for

7656warnings, signage, or advanced notification to boaters regarding

7664navigation restrictions. In short, such a restriction would be

7673contrary to the public interest because of maintenance, safety,

7682and liability issues that may arise. The e liminatio n and

7693reduction of impacts is not required.

7699CONCLUSION S OF LAW

770360 . In order for a third party to have standing as a

7716petitioner to initiate an administrative proceeding, the

7723evidence must prove that the petitioner has substantial rights

7732or interests that " could reasonably " be affected by the agency's

7742decision. See , e.g. , Palm Beach Cnty. Envtl. Coalition v. Fla.

7752Dep't of Envtl. Prot. , 14 So. 3d 1076 , 1078 (Fla. 4th DCA 2009).

7765Here, Petitioners' s ubstantial rights or interests are alleged

7774to be riparian ri ghts and various interests that will be

7785secondarily impacted if the project generates more boat traffic

7794in the area. But secondary and cumulative impacts of the

7804project were already considered by the District before granting

7813an ERP, 4 and the only riparian rights that must be protected are

7826ingress and egress and the ability to wharf out from one's

7837upland property. 5 Petitioners agree that th ese riparian rights

7847will not be affected. E ven if secondary and cumulative impacts

7858must be considered a second time , they are based on the premise

7870that boat traffic will increase throughout the area , an

7879assumption that their own boating expert admits is speculation.

7888Assuming arguendo that the Board's decision is "agency action"

7897subject to a chapter 120 proceeding, i t is concluded that

7908Petitioners have failed to prove that their substantial rights

7917or interests could reasonably be affected by the Board's

7926decision. Notwithstanding th eir lack of standing, Petitioners

7934have been allowed to fully litigate all allegations in th eir

7945Amended Petition.

79476 1 . For the reasons given in the Findings of Fact, the

7960evidence supports a conclusion that DOT has given reasonable

7969assurances that all applicable criteria have been met and that

7979its application for a public easement should be approv ed.

79896 2 . Given the above conclusions, the Board's Renewed

7999Motion to Dismiss for Lack of Standing is rendered moot.

8009RECOMMENDATION

8010Based on the foregoing Findings of Fact and Conclusions of

8020Law, it is

8023RECOMMENDED that the Board of Trustees of the Internal

8032Improvement Trust Fund issue a final order approving DOT's

8041application for a 50 - year easement to use Sovereign Submerged

8052Land s to replace the Little Lake Worth B ridge in Palm Beach

8065County .

8067DONE AND ENTERED this 9th day of A ugust , 20 1 1 , in

8080Talla hassee, Leon County, Florida.

8085S

8086D . R. ALEXANDER

8090Administrative Law Judge

8093Division of Administrative Hearings

8097The DeSoto Building

81001230 Apalachee Parkway

8103Tallahassee, Florida 32399 - 3060

8108(850) 488 - 9675

8112Fax Filing (850) 921 - 6847

8118www.doah.state.fl.us

8119Filed with the Cler k of the

8126Division of Administrative Hearings

8130this 9th day of August, 201 1 .

8138ENDNOTE S

81401/ In the ty pical case involving a water - dependent project, a n

8154application for a lease or easement is filed with an application

8165for a related regulatory permit. Under ru le 18 - 21.00401(5), the

8177applications are "linked" together and both are subject to a

8187chapter 120 hearing , if challenged by a third party . Th e

8199instant case presents the uncommon scenario where the regulatory

8208and proprietary applications are not linked, the application for

8217an easement stands alone, and the above rule does not apply.

8228When this occurs, a water management district must provide

8237notice to property owners within 500 feet of the proposed

8247activity , see § 253.115(1), Fla. Stat. , a n otice must be

8258publ ished in a local newspaper , see § 253.115(3), Fla. Stat. ,

8269and i nterested persons may then submit comments and/or

8278objections regarding the pending application. Except for a

"8286local informal hearing" that may be conducted by the water

8296management district at its discretion, under long - standing

8305practice the submission of written comments and objections is

8314the only opportunity members of the public have to voice their

8325opinions on the project. The application is then ap prove d or

8337denie d without a formal hearing. If an application is approved,

8348the matter is forwarded to DEP's Division of State Lands, which

8359issues the appropriate real estate instrument. Once the

8367instrument is issued and executed, the Administrator for

8375Submerged Lands and Environmental Resources, M r. Rach , indicated

"8384that's it," and no further administrative avenue is available

8393to the public to contest the decision. Mr. Rach suggested that

8404at that point, a n action in circuit court may be available to an

8418aggrieved person. If a project is determined to be one of

8429heightened public concern, the application must be considered by

8438the Board. See Fla. Admin. Code R. 18 - 21.0051(4). The matter

8450is noticed for public hearing (along with other items to be

8461considered by the Cabinet), and members of the public are

8471permitted to address the Board regarding th e merits of the

8482application. When a proprietary authorization, by itself, is

8490sought, t he water management districts and Board have never

8500provided a point of entry to a hearing under chapter 120 , or

8512advised th at an appeal of their decision may be taken under

8524section 120.68. The rationale for not doing so is that the

8535a ction is proprietary in nature , it is not agency action within

8547the meaning of chapter 120, and it is more akin to a landlord -

8561tenant relationship where the State, as owner of the lands,

8571decides what type of activities are allowed on the submerged

8581lands. Not surprisingly, there are no reported cases that

8590squarely address this narrow issue. C hoosing to err on the side

8602of caution, however, the Board honored Petitioners' request for

8611a hearing.

86132/ The Conceptual State Lands Management Program was adopted by

8623the Board on March 17, 1981. See Petitioners' Ex. 39. It was

8635later amended on March 15, 1983. Id.

86423/ Although the Board and DOT take the po sition that

8653Petitioners lack standing to file the challenge, and that most

8663of the allegations concern criteria that are not relevant, the

8673Board considered all objections raised by Petitioners before

8681making a decision, and it then afforded Petitioners a cha pter

8692120 hearing to litigate those issues.

86984 / Petitioners' reliance on rule 18 - 20.006 (inadvertently cited

8709as 18 - 21.006 in Petitioners' post - hearing submission) for the

8721proposition that cumulative impacts must be considered is

8729misplaced; that rule requ ires a cumulative impact stud y for

8740activities in aquatic preserves. Likewise, the case of

8748Lineburger v. Prospect Marathon Coquina, LLC , Case No. 07 - 3757,

87592008 Fla. ENV LEXIS 126 (Fla. DOAH Mar. 21, 2008), modified in

8771part , OGC Case No. 07 - 1367, 2008 Fla. ENV LEXIS 120 (Fla. DEP

8785Aug. 4, 2008), is distinguishable, as that project was located

8795in the Pinellas County Aquatic Preserve and was subject to

8805chapter 18 - 20 criteria . Petitioners also cite n o authority for

8818the proposition that secondary impacts must be considered when

8827approving a public easement such as this , where those impacts

8837were previously considered in the regulatory process .

88455 / Rule 18 - 21.004(3)(a), as clarified by 18 - 21.004(3)(c),

8857provides that the traditional, common law riparian rights of

"8866adjacent upland property owners" must not be unreasonably

8874restricted or infringed upon by activities on submerged lands.

8883There are no reported cases, administrative or appellate, which

8892hold that someone other than an adjacent upland property owner

8902has st anding to challenge an application to use submerged lands

8913on the theory that a ll of his traditional, common law riparian

8925rights will be infringed upon .

8931COPIES FURNISHED:

8933Herschel T. Vinyard, Jr., Secretary

8938Department of Environmental Protection

89423900 Co mmonwealth Boulevard

8946Tallahassee, Florida 32399 - 3000

89513 6

8953Lea Crandall, Clerk

8956Department of Environmental Protection

89603900 Commonwealth Boulevard

8963Mail Station 35

8966Tallahassee, Florida 32399 - 3000

8971Thomas M. Beason, General Counsel

8976Department of Environmental Pr otection

89813900 Commonwealth Boulevard

8984Mail Station 35

8987Tallahassee, Florida 32399 - 3000

8992Jacob D. Varn, Esquire

8996Fowler White Boggs, P.A.

9000Post Office Box 11240

9004Tallahassee, Florida 32302 - 1240

9009Bruce R. Conroy , Esquire

9013Department of Transportation

9016605 Suwanne e Street

9020Mail Stop 58

9023Tallahassee, Florida 32399 - 0458

9028Ryan S. Osbourne, Esquire

9032Department of Environmental Protection

90363900 Commonwealth Boulevard

9039Mail Station 35

9042Tallahassee, Florida 32399 - 3000

9047NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

9053All parties have t he right to submit written exceptions within 15

9065days of the date of this Recommended Order. Any exceptions to

9076this Recommended Order should be filed with the agency that will

9087render a final order in this matter.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 10/28/2011
Proceedings: Agency Final Order
PDF:
Date: 10/28/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 09/06/2011
Proceedings: Department of Transportation's Response to Petitioners' Exceptions to Findings of Fact, Conclusion of Law, and Endnotes filed.
PDF:
Date: 08/25/2011
Proceedings: Petitioners' Exceptions to the Recommended Order filed.
PDF:
Date: 08/24/2011
Proceedings: Department of Transportation's Exceptions to Recommended Order filed.
PDF:
Date: 08/09/2011
Proceedings: Recommended Order
PDF:
Date: 08/09/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/09/2011
Proceedings: Recommended Order (hearing held June 20-22, 2011). CASE CLOSED.
PDF:
Date: 07/18/2011
Proceedings: Board of Trustees of the Internal Improvement Trust Fund's Proposed Recommended Order filed.
PDF:
Date: 07/18/2011
Proceedings: Florida Department of Transportation's Proposed Recommended Order filed.
PDF:
Date: 07/18/2011
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 07/07/2011
Proceedings: Transcript of Proceedings Volume I - V (not available for viewing) filed.
Date: 07/06/2011
Proceedings: Department of Transportation's Exhibit related to FDOT's application for a sovereign submerged lands easement (exhibit not available for viewing)
Date: 06/27/2011
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
Date: 06/27/2011
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
Date: 06/20/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/20/2011
Proceedings: Order (denying motion to reconsider).
PDF:
Date: 06/17/2011
Proceedings: Motion to Reconsider filed.
Date: 06/17/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 06/16/2011
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 06/16/2011
Proceedings: Respondent Board of Trustees' Motion in Limine, Renewed Motion to Dismiss and Motion to Dismiss Petitioner John Tory, Jr. for Lack of Standing filed.
PDF:
Date: 06/16/2011
Proceedings: Amended Notice of Hearing (hearing set for June 20 through 22, 2011; 9:00 a.m.; West Palm Beach, FL; amended as to hearing room location).
Date: 06/16/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
Date: 06/15/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 06/15/2011
Proceedings: Motion to Reconsider filed.
PDF:
Date: 06/14/2011
Proceedings: Order (on Petition to Intervene).
PDF:
Date: 06/13/2011
Proceedings: Response in Opposition to Petition to Intervene filed.
PDF:
Date: 06/10/2011
Proceedings: Respondent Board's Response to Petitioners' First Request for Production of Documents filed.
PDF:
Date: 06/10/2011
Proceedings: Notice of Service of Response to Petitioners' First Request for Production filed.
PDF:
Date: 06/10/2011
Proceedings: Petitioners', Tory and Thomas, First Set of Interrogatories to Respondent, Board of Trustees of the Internal Improvement Trust Fund filed.
PDF:
Date: 06/10/2011
Proceedings: Notice Service of Response to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 06/10/2011
Proceedings: Notice of Service of Respondent, Department of Transportation's Answer to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 06/10/2011
Proceedings: Notice of Service of Respondent, Department of Transportation's Responses to Petitioners' First Request for Production of Documents filed.
PDF:
Date: 06/08/2011
Proceedings: Motion to Expedite Filing of Response filed.
PDF:
Date: 06/06/2011
Proceedings: Petitioners' Notice of Serving Answers to Respondent Florida Department of Transportation's First Set of Interrogatories to John Tory, Jr filed.
PDF:
Date: 06/06/2011
Proceedings: Amended Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 06/06/2011
Proceedings: Petitioners' Notice of Serving Answers to Respondent Florida Department of Transporation's First Set of Interrogatories to John F. Thomas filed.
PDF:
Date: 06/03/2011
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 05/31/2011
Proceedings: Intervenors Witness List filed.
PDF:
Date: 05/31/2011
Proceedings: Petition to Intervene (of Christopher Karch, Robert B. Martin, and Joseph W. O'Neill) filed.
PDF:
Date: 05/31/2011
Proceedings: Order (granting motion for substitution of parties and denying Respondents' motion to dismiss amended petition).
PDF:
Date: 05/27/2011
Proceedings: Respondent, Board of Trustees, Witness List (w/ signed certificate of service) filed.
PDF:
Date: 05/27/2011
Proceedings: Respondent, Board of Trustees, Witness List (w/ unsigned certificate of service) filed.
PDF:
Date: 05/27/2011
Proceedings: Notice of Appearance (by James Curry on behalf of Intervenor) filed.
PDF:
Date: 05/27/2011
Proceedings: Respondent, Department of Transportation's, Witness List filed.
PDF:
Date: 05/26/2011
Proceedings: Petitioners' Witness List and Deposition Schedule filed.
PDF:
Date: 05/26/2011
Proceedings: Notice of Substitution of Parties filed.
PDF:
Date: 05/20/2011
Proceedings: Suggestion of Death filed.
PDF:
Date: 05/20/2011
Proceedings: Notice of Serving Petitioners, John A. Tory and John F. Thomas, First Set of Interrogatories to Respondent, Board of Trustees of the Internal Improvement Trust Fund of the State of Florida filed.
PDF:
Date: 05/20/2011
Proceedings: Petitioners', Tory and Thomas, Notice of Serving First Request for Production of Documents to Respondent, Florida Board of Trustees of the Internal Improvement Trust Fund filed.
PDF:
Date: 05/20/2011
Proceedings: Notice of Serving Petitioners. John A. Tory and John F. Thomas, First Set of Interrogatories to Respondent, Florida Department of Transportation filed.
PDF:
Date: 05/20/2011
Proceedings: Petitioners', Tory and Thomas, Notice of Serving First Request for Production of Documents to Respondent, Florida Department of Transportation filed.
PDF:
Date: 05/17/2011
Proceedings: Amended Notice of Hearing (hearing set for June 20 and 21, 2011; 9:00 a.m.; West Palm Beach, FL; amended as to dates of hearing).
PDF:
Date: 05/17/2011
Proceedings: Order (on hearing dates and discovery deadlines).
Date: 05/13/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 05/10/2011
Proceedings: Notice of Scheduling Conference filed.
Date: 05/09/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 05/05/2011
Proceedings: Notice of Hearing filed.
PDF:
Date: 05/04/2011
Proceedings: Respondent, Department of Transportation's Notice of Serving First Request for Production of Documents to Petitioner, John F. Thomas filed.
PDF:
Date: 05/04/2011
Proceedings: Notice of Serving Respondent, Department of Transportation's First Set of Interrogatories Petitioner, John F. Thomas filed.
PDF:
Date: 05/04/2011
Proceedings: Notice of Serving Respondent, Department of Transportation's First Set of Interrogatories to Petitioner, John A. Tory filed.
PDF:
Date: 05/04/2011
Proceedings: Respondent, Department of Transportation's Notice of Serving First Request for Production of Documents to Petitioner, John A. Tory filed.
PDF:
Date: 04/29/2011
Proceedings: Affidavit of John Olson, P. E. filed.
PDF:
Date: 04/29/2011
Proceedings: Respondents Joint Motion to Expedite Hearing filed.
PDF:
Date: 04/20/2011
Proceedings: Amended Notice of Hearing (hearing set for August 16 through 18, 2011; 9:00 a.m.; West Palm Beach, FL; amended as to hearing dates).
PDF:
Date: 04/19/2011
Proceedings: Petitioner's, Tory and Thomas, Motion for Continuance filed.
PDF:
Date: 04/18/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/18/2011
Proceedings: Notice of Hearing (hearing set for July 11 through 13, 2011; 9:00 a.m.; West Palm Beach, FL).
Date: 04/15/2011
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 04/12/2011
Proceedings: Notice of Status Conference filed.
PDF:
Date: 04/11/2011
Proceedings: Petitioners', Tory and Thomas, Response to Respondent's Board of Trustees, Motion to Dismiss Amended Petition filed.
PDF:
Date: 04/04/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 04/04/2011
Proceedings: Amended Joint Response to Initial Order filed.
PDF:
Date: 04/04/2011
Proceedings: Petitioners', Tory and Thomas, Response to Florida Department of Transportation's Motion to Dismiss Amended Petition filed.
PDF:
Date: 04/01/2011
Proceedings: Respondent, Board of Trustees' Motion to Dismiss Amended Petition (complete) filed.
PDF:
Date: 03/31/2011
Proceedings: Respondent, Board of Trustees' Motion to Dismiss Amended Petition (incomplete) filed.
PDF:
Date: 03/28/2011
Proceedings: Respondent, Florida Department of Transportation's Motion to Dismiss Amended Pettion filed.
PDF:
Date: 03/28/2011
Proceedings: Initial Order.
PDF:
Date: 03/28/2011
Proceedings: Agency action letter filed.
PDF:
Date: 03/23/2011
Proceedings: Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 03/23/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
03/28/2011
Date Assignment:
03/28/2011
Last Docket Entry:
10/28/2011
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (9):

Related Florida Rule(s) (4):