12-003291 Elizabeth Padron vs. Carl J. Ekblom And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, June 5, 2013.

Summary: Ekblom's application to install a boat lift on an existing dock was exempt from DEP permitting requirements, and did not create a navigational hazard; a cradle lift need not be physically attached to the dock.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH PADRON,

Petitioner,

vs. Case No. 12 - 3291

CARL J. EKBLOM AND DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondents.

/

RECOMMENDED ORDER

This matter was heard before the Division of Administrative

Hearings (DOAH) by its assigned Administrative Law Judge, D . R.

Alexander, on March 5, 2013, by videoconferencing at sites in

Marathon and Tallahassee, Florida.

APPEARANCES

For Petitioner : Patricia M. Silver, Esquire

John W. Annesser, Esquire

The Silver Law Group , P.A.

Post Office Box 710

Islamorada, Florida 33036 - 0710

For Respondent : Hillary Copeland Powell, Esquire

(D epartment) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Ta llahassee, Florida 32399 - 3000

For Respondent : James S. Lupino, Esq uire

( Ekblom ) Brittany N. Miller , Esquire

Hershoff, Lupino and Yagel, LLP

90130 Old Highway

Tavernier, Florida 33070 - 2348

STATEMENT OF THE ISSUE

The issue is whether Carl J. Ekblom's (Ekblom's)

application to install a boatlift a t an existing dock in a man -

made body of water in Islamorada is exempt from the need for an

Environmental Resource Permit (ERP) .

PRELIMINARY STATEMENT

On August 20, 2012, the Department of Environmenta l

Protection (Department) gave notice that Ekblom's application to

install a boatlift on an existing dock in Islamorada was exempt

from Department permitting requirements and did not require

proprietary review. Petitioner, Elizabeth Padron (Padron) , who

o wns the existing dock on the adjacent lot, filed her Petition

for Administrative Hearing challenging that determination . The

matter was then referred by the Department to DOAH. Prior to

hearing, Padron filed an Amended Petition. The case was later

trans ferred from Administrative Law Judge Bram D.E. Canter to

the undersigned.

Numerous discovery disputes arose during the course of this

proceeding and their disposition is shown on the docket sheet.

A PreHearing Stipulation (Stipulation) was filed by the parties .

At the final hearing, Petitioner presented the t estimony of

Dr. Paul Lin, a coastal engineer and accepted as an expert in

coastal engineering ; Captain Thomas E. Danti, accepted as an

expert in navigation; and Marcus J. Soto , Petitioner's son.

Als o, Petiti oner's Exhibits 1 - 10 were received in evidence.

Exhibit 10 is the deposition testimony of P adron . The

Department presented the testimony of Celia E. Hitchens, an

Environmental Specialist II and accepted as an expert in

applying ERP rules . Also, D epartment Exhibits 1 - 7 were received

in evidence. Ekblom testified on his own behalf and presented

the testimony of Randy Whiteside s , an expert in marine

construction; and Robert J. C amuccio, an expert in navigation .

Finally, R e spondent's Exhibits 1 - 4, 6, and 14 - 18 were received

in evidence.

A T ranscript of the hearing (two volumes) has been

prepared. Proposed Findings of Fact and Conclusions of Law were

timely filed by each party, and they have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

A. Background

1. Ekblom owns property and resides at 107 South Drive

(Lot 27) , Islamorada . Padron owns the neighboring property

immediately to the south located at 109 South Drive (Lot 28).

2. The two pie - shaped lots sit at the V - shaped western end

of Plantation Lake, an art i ficial body of water on which several

houses are located. Each of the two properties has a marginal

dock running along the shoreline that meet s to form an acute

angle. 1 A 33 - foot finger pier juts out f rom the vertex of the

angle, running along the border of the property line. Pursuant

to an understanding with the pr ior owner of Lot 28, and later

formalized in an easement agreement, for the past 12 years

Ekblom has used the north side of the finger pier to moor a

35 to 36 - foot long boat with a beam of about 12 feet, six

inches . 2 During that time, he has never had a navigational

incident or complaint . Recently, he purchased a slightly

smaller boat that is 31 feet, seven inches long and will replace

t he larger vessel . The outboard motors will add an additional

two feet.

3. A jet ski lift currently exists on the north side of

the finger pier and can only be accessed and used from that side

of the pier . It was purchased, paid for, and installed by

Ekb lom in 2000 pursuant to an agreement with the prior owner of

Lot 28. See Endnote 2 , infra . The jet ski lift has not been

used by Ekblom since 2004. The drawings submitted by Ekblom

with his verification application did not depict the lift.

B. The Proje ct

4. Ekblom has contracted with a marine construction firm

to install a boat lift for his new boat. The lift will be on

the north side of the finger pier, in a location selected to

provide for straight ingress and egress.

5. After inspecting the prop erty, the contractor decided

that a four - post, or cradle lift, is the best option for the

space, to allow for a straight - in ingress and egress. A cradle

lift consists of four pilings, one on each corner. Two lifting

mechanisms sit on top of the pilings, running parallel to the

boat's location, and a set of cables reach down from the pilings

to a pair of lifter beams used to lift the boat out of the

water. Ekblom selected a 13,000 - pound cradle lift, which is

approximately 12 feet, six inches, center to ce nter, by 12 feet,

six inches, out to out. A ten - inch piling on either side will

add an additional five inches on either side of the center to

center measurement. The lift is not physically attached to the

pier because a four - post lift is freestanding, as opposed to an

elevator lift, which attaches to the side of a seawall or dock.

6 . The lift will need to be placed adjacent to the finger

pier so that it is approximately two feet inside of Ekblom's

property line. The boat will be moored bow - in, so that t wo -

thirds of the boat's overall length will be towards the inside

of the finger pier.

7 . The contractor prepared the drawing depicting the

placement of the lift, which was attached to Ekblom's

application. The drawing, which was not to scale, showed the

lift as 12 feet, six inches, by 14 feet. Use of a boarding

platform or access walkway will be necessary to get to the boat

on the lift, but this was not shown on the application.

8 . On August 10, 2012, an Environmental Specialist II,

Celia Hitchins, wh o reviews between 30 and 60 exemption

applications per month, reviewed Ekblom's request to install the

cradle lift . The submittal consisted of a cover letter, an

application, a property record card, a copy of the easement, and

project drawings and specifi cations. Ms. Hitchins determined

that the project was exempt from ERP permitting requirements

under Florida Administrative Code Rule 40E - 4.051(3)(b)(1995). 3

Because the activity would take place in a n artificially created

body of water, no proprietary re view was required.

9. After an exemption letter was issued, in October 2012

Ekblom filed a corrected application with new project drawings,

but the project was not changed in any substantial way. After a

challenge to the Department's determination was filed by Padron,

Ms. Hitchens conducted a site inspection in February 2013. She

did not change her original determination.

10. The project drawings do not depict the boat lift as

physically attached to the finger pier. About half of the

exemptions Ms. H itchins reviews are for elevator lifts, which

attach to a dock, and the other half are for cradle lifts, which

do not need to be physically attached to the dock. Both type s

of structures may be exempt, as the Department interprets the

word "attached" in r ule 40E - 4.051(3)(b) to mean either

physically attached or in close proximity and associated with a

docking facility. "Close proximity" means a close step, or a

reasonable step, or some sort of means of access, such as a

boarding platform or access walkway . It does not include

needing to run and jump on the vessel or needing to swim to the

vessel. This is a more reasonable and logical interpretation of

the rule than th e narrow one advocated by Padron. Ms. Hitchins

determined from the project drawings tha t the lift was in close

proximity to the finger pier and met the requirements of the

rule.

1 1 . Padron engaged Dr. Lin to take measurements of the

project area and develop scaled drawings. In these scaled

drawings, he depicted the boat lift as 12 feet, si x inches, by

14 feet, ten inches. He arrived at the latter measurement by

using the generic drawing specifications for the 16,000 - pound

boat lift that showed the width as 14 feet from center to

center, and added ten inches to acc ommodate a ten - inch piling on

each side.

1 2 . Dr. Lin prepared six alternative placements of the

boat lift, including placements with a two and eight - foot

" safety zone " (buffer zone) between the boat on the lift and

Ekblom's marginal dock.

C. Petitioner's Objections

1 3 . In the parties' Stipulation, Padron contend ed that the

boat lift will not be used for recreational, non - commercial

activities; it will involve filling or dredging other than

necessary to install the pilings; it will create a navigational

hazard; and it will not be the sole dock constructed pursuant to

the exemption. She also argue d that the boat lift must be

physically "attached" to the finger pier. In her Proposed

Recommended Order, however, sh e focuses primarily on whether the

boat lift will create a navigati onal hazard and whether the

cradle lift must be physically attached to the finger pier in

order to qualify for an exemption.

1 4 . Padron purchased her home in January 2011. Between

May and July 2012, she expended around $18,000.00 in maintenance

work on t he finger pier. She testified that she opposes

Ekblom's proposed boat lift because it will prevent her from

having full an d complete use of the pier and will be dangerous

to people jumping into the water near it. She owns a 23 - foot

boat , but only her son us es it. When not in use, the boat is

normally stored in her garage or at her primary residence in

Miami. S he has never swum in the basin behind her house, and

she does not kayak. Her family occasionally swims in the water.

In both her pleadings and t estimony, Padron suggest s t hat if

this appeal is unsuccessful, she is going to have the finger

pier demolished.

1 5 . Marcos Soto, Padron's son, who resides in Miami, tries

to visit his mother's house on weekend s when he "[has] the

chance . " He testified that "we" use the area behind the house

for boating, swimming, and fishing. However, only he and his

nephew fish. Mr. Soto owns three small boats and plans to

purchase a jet ski. He acknowledged that his primary objection

to the boat lift is that he wi ll be unable to use the jet ski

lift. Mr. Soto has no ownership in the property.

a. Recreational, Non - commercial Activities

1 6 . Ekblom testified that he will use the boat and lift

for recreational purposes. Padron offered no contrary evidence

on this p oint.

b. Dredging

1 7 . To install the lift, the contractor will generally use

a drop hammer from a crane on a barge to punch four holes for

the pilings. Installation does not involve any more excavation

than that. Also, Ms. Hitchins did not see anything in the plans

that would require dredging or filling. Therefore, the lift

will not require more dredging and filling than necessary to

install the pilings. This evidence was not refuted.

1 8 . The proposed exemption does not include any exemption

determin ation as to electrical service.

c. Navigational Hazard

1 9 . There are no channel markers in the middle of the

basin , and the basin has only one exit and entrance at its

eastern end. The lift will be located at the dead end of the

waterway, in an area o f the basin in which only a few boats

would navigate. Also, the boat will be on the lift in the same

position as if Ekblom tied it to the finger pier. The small

inlet into the basin limits the size of a boat coming in, and

the water in the basin is calm, compared to the open ocean.

20 . Ekblom's neighbor to the northeast on Lot 2 6 , Carl

Wright, docks a 30 - foot boat on the seawall in front of his

property. When Mr. Wright leaves his dock, he pushes the stern

of his boat away from the seawall, and backs aw ay. Once he

clears the seawall with his bow, he puts the port engine in

forward, turns the boat on its center, then leaves the area with

the bow pointing out. When he returns, he parks the boat

against the seawall. There is no way for Mr. Wright to egre ss

bow first. Mr. Wright did not file any objection to the

project.

21. Ekblom will egress parallel to the finger pier. He

will never need to navigate on the south side of the finger

pier. Once the lift is installed, Ekblom will not use his

marginal do ck to moor another boat, as one will not fit there.

2 2 . Ekblom's expert, Mr. Camuccio, testified that the boat

lift would not create a navigational hazard. He visited the

site by boat and reviewed the documentation submitted to the

Department. His opini on did not change after reviewing

Dr. Lin's drawings.

23. Ms. Hitchins opined that the lift would not cause a

navigational hazard. She further opined that the lift would not

interfere with navigation to and from the Padron side of the

finger pier to the south, since the lift was located on the

north side . Also , it would not preclude ingress and egress of

vessels to Lot 26 to the northeast . She would not consider the

boat lift to be any more intrusive than a boat moored in the

same area. Any boa t on Lot 26 would only need a small amount of

clearance for ingress and egress.

2 4 . Padron's navigation expert, Mr. Danti , concluded that

the boat lift would be a navigational hazard in each of the six

different scenarios Dr. Lin prepared. He concluded t hat the

lift would preclude access to the northern side of the finger

pier, would create a navigational hazard for the neighbor to the

northeast on Lot 26 , and would be a hazard for a jet ski's

ingress and egress to the jet ski lift.

2 5 . The mere fact tha t the lift may preclude access to the

north side of the finger pier does not make it a navigational

hazard. As Mr. Camuccio testified, inherently, a boat lift

occupies some portion of navigable water that is potentially

open for navigation, but it does no t mean the lift is a

navigation hazard. Notably, Ekblom has moored a boat on the

north side of the pier for at least 12 years without incident or

complaint .

2 6 . The lift will not be a navigational hazard to

Mr. Wright on Lot 26. Mr. Danti based hi s opinions on Dr. Lin's

scaled drawings. But the specifications Dr. Lin used for the

lift were too large, and Dr. Lin admitted that there was no way

to verify whether he depicted the correct location of the

riparian line. His drawings could inaccurately depict the

proposed location of the boat lift by approximately two feet,

seven inches. Mr. Danti admitted that he would need to

recalculate his opinions if the proposed boat lift was up to two

feet smaller in width than depicted.

2 7 . Mr. Danti 's opinion was also based on his conclusion

that a jet ski would need a minimum of an eight - foot safety zone

for ingress and egress. He would not change the size of the

safety zone even if the conditions presented were changed; his

opinion is based on the premise th at a safety zone must be one -

half of the beam of the vessel all around the vessel. However,

Mr. Camuccio approximated the distance needed for any jet ski as

four feet, which would give six inches on either side for

clearance of other structures. He added that when docking a

boat, the distance between the boat and the dock becomes zero at

some point, because docking is nothing more than a controlled

crash. Mr. Danti admitted that when docking a vessel, the

circumstances c an get tight, as opposed to the op en ocean.

2 8 . Even if the lift is installed to leave an eight - foot

safety zone, any boat at Lot 26 will still have a small amount

of room for clearance for ingress and egress.

d. Sole Dock

2 9 . The Department considers a boat lift to be an

associated st ructure under rule 40E - 4.051(3)(b). Thus, the fact

that Ekblom has a marginal dock on his property and a jet ski

lift would not preclude a determination that the boat lift is

exempt.

CONCLUSIONS OF LAW

30 . Padron has presented sufficient evidence to

demo nstrate that her substantial interests could reasonably be

affected by the exemption determination. See, e.g. , Peace

River/Manatee Reg'l Water Supply Auth. v. IMC Phosphates Co. ,

18 So. 3d 1079, 1084 (Fla. 2d DCA 2009).

3 1 . The burden of showing entit lement to an exemption is

on the applicant. See , e.g. , Lardas v. Dep't of Envtl. Prot. ,

Case No. 05 - 0458, 2005 Fla. ENV LEXIS 229 (Fla. DOAH Aug. 24,

2005), adopted , OGC Case No. 04 - 1927, 2005 Fla. ENV LEXIS 228

(Fla. DEP Oct. 21, 1995). Because no permi t is being issued by

the Department, section 120.569(2)(p), Florida Statutes, do es

not apply.

3 2 . Section 403.813(1)(b) provides that a permit is not

required under chapter 373 for "activities associated" with the

installation of private docks, provided t hey meet certain

conditions. Rule 40E - 4.051( 3 )(b) implements this statutory

exemption in relevant part as follows:

(b) . . . To qualify for this exemption,

any such dock and associated structure:

1. Shall be used for recreational, non -

commercial activi ties;

2. Shall be constructed or held in place by

pilings, including floating docks, so as not

to involve filling or dredging other that

[sic] necessary to install the pilings;

3. Shall not substantially impede the flow

of water or create a navigationa l hazard;

and

4. . . . Activities associated with a

private dock shall include the construction

of structures attached to the pier which are

only suitable for the mooring or storage of

boats (i.e., boatlifts) .

Padron contends that Ekblom fails to sati sfy any of the

foregoing criteria.

3 3 . The unrefuted evidence supports a conclusion that

Ekblom's proposed boat lift will be used for recreational, non -

commercial purposes and will not involve more dredging and

filling than that necessary to install the p ilings.

3 4 . Conflicting testimony was presented by the parties on

the navigational hazard issue. However, t he more persuasive

evidence supports a conclusion that the boat lift will not cause

a navigational hazard. Even if it arguably causes a slight

inc onvenience , this does not rise to the level of a navigational

hazard. See, e.g. , Scully v. Patterson , Case No. 04 - 1799, 2005

Fla. Div. Adm. Hear. LEXIS 948 (Fla. DOAH April 14, 2005),

adopted , OGC Case No. 04 - 1799 (Fla. DEP May 23, 2005). The rule

criter ion has been met.

3 5 . Rule 40E - 4.051(3)(b) does not prohibit the cradle lift

solely because it is not physically attached to the finger pier.

The Department considers the word "attached" to mean in close

proximity to or a short step from and associated w ith a docking

facility. This meaning is consistent with the definition of

"attach," which means "to connect as an adjunct or associated

part." Am. Heritage Dictionary (2d College e d., 1991).

Otherwise, cradle lifts would not be exempt from permitting

re quirements, while elevator lifts would, leading to an

unreasonable and absurd result. The Department's interpretation

of the rule is a reasonable and logical one ; the rule criterion

has been satisfied .

3 6 . Petitioner contends, however, that this case " is on

all fours with and indistinguishable " from Rosenblum v. Zimmet ,

Case No. 06 - 2859, 2007 Fla. Div. Adm. Hear. LEXIS 577 (Fla. DOAH

Oct. 23, 2007), adopted , OGC Case No. 06 - 1444, 2007 Fla. Div.

Adm. Hear. LEXIS 866 (Fla. DEP Dec. 11, 2007) , in which a

r equest for a dock and lift exemption was denied . While there

are some similarities in the two cases, the Rosenblum case is

not on all fours and indistinguishable from the instant case, as

Padron claims . Like Ekblom and Padron, R ose n blum and Zimmet

shared a common boundary between their two lots on a man - made

canal. A n existing dock extended from Rosenblum's property into

the canal ; both owners had access to the dock , Rosenblum on the

north side and Zimmet on the south . Zimmet filed an application

reques ting an ERP exemption to install an eight - foot by 20 - foot

marginal dock with an elevator lift along his shoreline just

south of , and perpendicular to , the existing dock. The proposed

marginal dock and lift were designed to accommodate a boat that

Zimmet i ntended to purchase. In denying the application , the

Administrative Law Judge noted that if a boat of the size

typically used in the canal (around 24.5 feet) was docked on the

south side of the existing dock, it could "barely fit alongside

Mr. Zimmet' s bo at," whether moored on the new marginal dock or

the lift, and there would not be "a reasonable amount of

clearance for navigating a boat" to or from the south side of

the existing dock. Id. at *7. Likewise, if a typical sized

boat were docked on the sout h side of the existing dock, "there

would not be a reasonable amount of clearance for Mr. Zimmet to

use his proposed [marginal] dock and lift." Id. The Department

agreed that the project would create a navigational hazard and

adopted the recommendation t o deny the application.

3 7 . But Ekblom does not intend to construct a new marginal

dock and lift adjacent to an existing finger pier ; he intends

only to construct a cradle lift attached to the finger pier .

His existing marginal dock will not be used to m oor another

boat, as one will not fit t here. Moreover, t he accepted

evidence here shows that the proposed lift will not preclude

ingress and egress to the finger pier , jet ski lift , or Lot 26 ,

or otherwise create a navigational hazard within the meaning o f

the rule . The Rosenblum case is clearly distinguishable.

3 8 . Ekblom has demonstrated by a preponderance of the

evidence that his proposed boat lift meets the requirements of

rule 40E - 4.051(3) and is exempt from ERP requirements.

3 9 . Ekblom's request for attorney's fees and costs under

section 120.595(1), first made in his Proposed Recommended Order

and not by motion as required by the statute, is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat the Department of Environmental Protection

enter a final order approving its determination that Ekblom's

application to install a boat lift is exempt from Department

permitting requirements.

DONE AND ENTERED this 5th day of June , 20 1 3 , in

Talla hassee , Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with th e Clerk of the

Division of Administrative Hearings

this 5th day of June , 201 3 .

ENDNOTE S

1 A marginal dock is a fixed or floating structure placed

immediately contiguous and parallel to the shoreline. See Fla.

Admin. Code R. 18 - 21.003(29).

2 In 200 2, an easement agreement was executed by Ekblom and the

previous owner of Lot 2 8 , which gives Ekblom access to the finger

pier and the right to dock his vessel on the north side. When

she purchased Lot 28 in 2011 , Padron testified that she was made

aware of the agreement and was told that Ekblom had a right to

dock his boat on the north side of the pier . See Petitioner 's

Ex. 10, p. 8. Even so, Padron has contended, at least in her

pleadings, that the easement does not give her neighbor access to

the pi er , but this issue must be resolved in circuit court, and

not by an administrative tribunal. For purposes of deciding this

case, the undersigned assumes that Ekblom has access to Padron's

dock. In any event, proof of ownership of, or access to, a dock

is not required in order to qualify for an exemption to construct

a boat lift.

3 In 1995, the Department adopted rule 40E - 4.051 by reference in

rule 62 - 330.200(4)(b). Thus, the rule as written in 1995 is the

controlling provision in this case. See § 120. 54(1) ( i)1., Fla.

Stat.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32 399 - 3000

Matthew Z. Leopold , General Counsel

Department of Environmental Pro tection

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Patricia M. Silver , Esquire

The Silver Law Group, P.A.

Post Office Box 710

Islam o rad a , Florida 33036 - 0710

James S. Lupino, Esquire

Hershoff, Lupino & Yagel, LLP

90130 Old Highway

Ta vernier , Florida 33070 - 2348

Hillary Copeland Powell, Esquire

Department of Environmental Protection

3000 Commonwealth Boulevard

Mail Station 35

Tallahassee , Florida 32 399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght 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.